17 Ala. 344 | Ala. | 1850
-In Cogburn & Powell v. Spence & Elliott, 15 Ala. 549, it was the opinion of this court that an execution issued from a judgment which was rendered against a bankrupt before he obtained his final discharge, was not void, but voidable only at the instance of the bankrupt; and that such an execution was a protection to the party at whose instance it wap issued, until avoided. In that case the judgment was rendered before the commencement of proceedings in bankruptcy; in this after, but before the final discharge. We think this difference cannot he material in a question between the creditor and the bankrupt. It was held at this term, in Ewing v. Peck & Clark, that a bankrupt could by a proper proceeding avoid an execution issued from a judgment by default against him, which was rendered pending the proceedings in bankruptcy. In this case Mrs. Roden brought her suit against Jaco before he filed, his petition in bankruptcy and recovered her judgment, as has been said already, before his final discharge. It does not appear that he made any defence, or that she proved her debt in the bankrupt proceedings, or that she was an actual party to them, A transcript of those proceedings is not made part of the bilk.of exceptions and cannot therefore be looked to. To deny that a bankrupt may suffer a judgment to go against him either peqd
The charge of the Circuit Court was, in our opinion, erroneous. The judgment is therefore reversed and the cause remanded.