102 So. 412 | La. | 1924
"The confirmation of a composition shall discharge the bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge. Section 14c (U.S. Comp. St. § 9598).
In Stauffer-Eshleman Co. v. Abington Hardware Co.,
"The suggestion of the bankrupt's discharge [accompanied by the original discharge, page 255] can have no effect here. Such discharge cannot be considered as a bar to an action, in any stage, without being pleaded; and, if obtained too late to be pleaded, either originally, or by amendment, the remedy, it seems, is by motion for perpetual stay of execution," citing Palmer v. Hutchins, 1 Cow. (N.Y.) 42; Baker v. Taylor, 1 Cow. (N.Y.) 165.
In Holyoke v. Adams,
"The discharge did not affect the appeal or stay proceedings upon it, or prevent a judgment therein."
In the case of Knapp v. Anderson, the action was brought against defendants as sureties upon an undertaking upon appeal from a judgment in favor of plaintiffs and against one Henry S. Lesznsky. The undertaking was that appellant (Lesznsky) would pay all costs and damages awarded against him on appeal, not exceeding $500, and, in case the judgment was affirmed in whole or in part, or the appeal dismissed, that he, Lesznsky, would pay the amount directed to be paid. The defense of the surety was that the judgment debtor had been discharged in bankruptcy pending the appeal, and the court held that this was not a defense. In the opinion of the court it is said:
"The defendants did not, by their undertaking, become liable for the debt of their principal, but their obligation was contingent and incident to the legal proceedings for the payment of the judgment that might be rendered upon the appeal. * * * The obligation became operative, and their liability fixed by the final judgment of the appellate court." Carpenter v. Turrell,
100 Mass. 450 ; Cornell v. Dakin,38 N.Y. 253 ; Poppenhusen v. Seeley *315 3 Abb. Dec. (N.Y.) 615; Odell v. Wootten,38 Ga. 224 ; Payne v. Able, 7 Bush (Ky.) 344, 3 Am. Rep. 316.
In this case the liability of the surety on the appeal bond was fixed and the transcript of appeal was filed in this court before proceedings in bankruptcy were instituted by defendant. The plea in abatement must therefore be overruled.
O'NIELL, C.J., dissents from the ruling on the plea in abatement.
OVERTON, J., recused. *316