780 S.W.2d 930 | Tex. App. | 1989
John Edward THIEL, Appellant,
v.
Aletha Eileen THIEL, Appellee.
Court of Appeals of Texas, San Antonio.
John Curney, Jr., Jorrie, Zucker & Assoc., Inc., San Antonio, for appellant.
James N. Higdon, Bass & Higdon, Inc., San Antonio, for appellee.
Before REEVES, CHAPA and BIERY, JJ.
OPINION
REEVES, Justice.
On the 28th day of July, 1989, appellant filed for relief pursuant to chapter 7 of the United States Bankruptcy Code. Appellant filed his Notice of Bankruptcy with this court on October 9, 1989, and the court noted that proceeding on October 9, 1989. Appellant contends that as a result of his bankruptcy filing, his appeal to this court along with any connected proceedings are stayed. Appellee filed a Response to Notice of Bankruptcy and Motion to Proceed with Appeal on October 11, 1989 with this court.
A review of the record of the trial court is in order. Appellant filed an Original Petition for Divorce in the 25th Judicial District Court of Guadalupe County. Appellee filed an Original Answer and Counterclaim, and prior to trial appellee filed an Amended Answer and Amended Counterclaim. The trial court found judgment for appellee on her counterclaim.
If the debtor was the plaintiff in the court below, the stay does not apply; if the debtor was the defendant, any further action is stayed. American Precision Vibrator Co. v. National Air Vibrator Co., 771 S.W.2d 562, 563 (Tex.App.Houston [1st Dist.] 1989, no writ). Bankruptcy Code 11 U.S.C. § 362 [(a)(1)] automatically stays all judicial proceedings "against the debtor." This article has been interpreted as staying all appeals of proceedings that were originally brought against the debtor, regardless of whether the debtor is the appellant or the appellee. Star-Tel v. Nacogdoches Telecommunication, 755 S.W.2d 146, 150 (Tex.App.Houston [1st Dist.] 1988, no writ) (emphasis added). See also Freeman v. C.I.R., 799 F.2d 1091, 1092-93 (5th Cir.1986); and In Re Cobb, 88 B.R. 119 (Bankr.W.D.Tex.1988).
This is an appeal from a proceeding initiated by the appellant, thus the proceeding was not one originally brought against the debtor/appellant.
*931 Accordingly, appellee's motion to proceed with appeal is granted.