22 Kan. 753 | Kan. | 1879
The opinion of the court was delivered by
This was an action on a promissory noteEirey, the plaintiff, filed his petition in the court below on December 11, 1876, against Tefft as maker and Auld as indorser of the note. Summons was duly issued, and served on both defendants on the same day. Both defendants were required to answer on or before January 2, 1877. Aulji answered on January 5, 1877, and Tefft did not answer at any time. On March 16, 1877, Tefft. filed his petition for adjudication ás a bankrupt, in the-district court of the United-States, and was afterward duly adjudged to be a bankrupt-On October 31, 1877, he was duly discharged by said court
There can be no question upon the facts of the case as now presented, that Tefft was on October 31, 1877, by virtue of said bankruptcy proceedings, duly discharged from all liability on said promissory note, and consequently that, with proper diligence on his part in-showing such discharge, no judgment should, or properly could, have been rendered against him on said note. But whether Tefft used proper diligence or not, ■was the material question in the case in the court below. That is, did he take the proper means in the court below to show that he was discharged from all liability on said note? That question, however, is not the only question presented in this court. If this court shall decide that the court below
“Section 1. That in any action pending before any of the courts of this state, on any contract provable under the act of congress hereinafter mentioned, when it is made to appear by the affidavit of any party to any such action, and the certificate of the register in bankruptcy, or the clerk of a district court of the United States, that such party has presented his petition to the proper court for a discharge under the act of congress, approved March 2, 1867, entitled ‘An act to establish a uniform system of bankruptcy throughout the United States,’ it shall be the duty of such court to continue all further proceedings against such person or persons, until the question of the debtor’s discharge shall have been determined.
• “Seo. 2. That in any action in which any judgment has been or may hereafter be rendered against any person or persons in any of the courts of this state, and such person or persons shall have applied to the proper court for his or their discharge under the act of congress, approved March 2,1867, entitled ‘ An act to establish a uniform system of bankruptcy throughout the United States,’ and shall file his or their affidavit or affidavits of such fact, with the certificate of any register in bankruptcy, or the clerk of the district court of the United States, it shall be the duty of the court to make an order in such case that no execution, order of arrest, or other process shall issue on the same, and no sale of lands or personal property shall be confirmed, but the same shall be set aside and held for naught.
“Sec. 3. That in any case in which any person or persons has been or may hereafter be discharged from his debts under and by virtue of the act of congress approved March 2,1867, entitled ‘An act to establish a uniform system of bankruptcy throughout the United States,’ and shall produce a certificate of discharge, as provided for by said act, to the court in which any judgment is of record, it shall be the duty of any such court to enter a discharge of any such person from any and all liability thereon, and the court shall order to be indorsed on the record of said judgment, the following words: ‘Dis*757 charged by virtue of the bankrupt law.’ And thereafter any such judgment shall be deemed fully discharged and satisfied.” (Comp. Laws of Kansas, 1879, p. 116.)
What was done in this case from January 5, 1877, (the time when Auld filed her answer,) up to March 4, 1879, (the time when said trial was had, and said judgment rendered,) is not shown. Whether the court was at any time during that time in session or not, whether the case was at any time called or not, whether it was at any time continued or not, and if continued, by whom, and upon what grounds, or whether any proceedings were had in the case under §1 of said statutes of Kansas, or under, any other law, does not appear. All that we can now know concerning the case, we have already stated.
Up to January 2, 1877, the last day within which Tefft had a right to answer, he had no defense to the action, and therefore very properly refrained from answering. His default was therefore meritorious, instead of being censurable or negligent; and he should certainly lose nothing by such default. From January 2, 1877, up to March 16,1877, (the time when Tefft filed his petition in bankruptcy,) the plaintiff, Firey, had a right to take judgment against Tefft on said default, without trial and without evidence; and the entering of the judgment would have been a merely formal matter — as purely formal as the entering of a judgment upon the verdict of a jury, or upon an agreed statement of facts, after the submission of the case thereon to the court; and if any such judgment had been rendered, Tefft could have come into court at any time after his discharge in bankruptcy, and have had such judgment discharged, as provided by § 3 of said statutes of Kansas. But no such judgment was rendered at that time. On March 16, 1877, Tefft filed his petition in bankruptcy, and still no judgment was rendered. Why all proceedings were still delayed is not shown. Possibly they were stayed under § 1 of said statutes; but whether they were so stayed or not, is not shown by the record, and it is wholly immaterial. On October 31, 1877, Tefft received his final
“Sec. 106. The court, or any judge thereof in vacation,, may, in his discretion, and upon such terms as may be just,.*761 allow an answer or reply to be made, or other act to be done, after the time limited by this act, or by an order enlarge such time.” (Comp. Laws of 1879, p. 616.)
“Sec. 144. Either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply.” (Comp. Laws of 1879, p. 619.)
As will be seen from § 106 of the code, the whole matter rests within the discretion of the trial court. Was that discretion abused? On October 31,1877, Tefft was discharged as a bankrupt, and his defense to this action then became complete. He might have appeared on that day before the district court, or the judge thereof, and have asked to file an answer in the case, setting up his said defense of a discharge in bankruptcy. He was then in default. And then was a very proper time to ask to be relieved from such default. But he did not appear. He did not appear at that time, nor at any other time prior to February 4, 1879. Why did' he not appear sooner? Why did he delay the matter so long? And when he did appear, why did he not account for or make some excuse for this great delay? For over fifteen months he slept upon his rights, without the slightest excuse therefor, so far as the record of the case shows. This was inexcusable negligence; and although the plaintiff was equally negligent in his great delay in taking judgment, still we cannot say that the court below abused its discretion in finally, and on February 4, 1879, refusing to permit the defendant Tefft to file an answer, and in then rendering judgment in favor of the plaintiff and against the defendant Tefft, for the amount of said note. Entertaining these views, the judgment of the court below must be affirmed.