Young & Co. v. Howe, 43 So. 488

Young & Co. v. Howe

43 So. 488 | Ala. | 1907

ANDERSON, J.

The plea of discharge in bankruptcy, the truth of which was admitted by the demurrer and replication, was a complete defense in bar to a. judgment against the defendant — Bankr. Act .July 1, 1898, c. 541, § 17, 30 Stat. 550 (TJ. S. Comp. St. 1901. p. 3428); McCary v. Mabe, 7 Ala. 356; Roden v. Jacobs, 17 Ala. 347; Oates v. Parish, 47 Ala. 157; Nelson v. Stewart, 54 Ala. 115, 25 Am. Rep. 660. The plaintiff, not being able in this action to get a judgment against the defendant in the circuit court on account of his discharge in bankruptcy, was not entitled under the statute (section 493 of the Code of 1896) to a judgment: against the sureties upon the appeal bond, as said section authorizes judgment against them in case the judgment appealed from is affirmed.

We do not think the rule countenanced in the case of Hill v. Harding, 130 U. S. 699, 9 Sup. Ct. 725, 32 L. Ed. 1083, has any application to the case at bar. In that *159case the plaintiff had an attachment lien, -which was not dissolved by the bankruptcy of the defendant, and the court said: “Such attachments being recognized as valid by the bankrupt act (Rev. St. § 5044), a. discharge in bankruptcy does not prevent the attaching, creditors from taking judgment against the debtor in such limited form as may enable- them to- reap the benefit of their attachment. When the attachment remains in force, the creditors, notwithstanding the discharge, may have judgment against the bankrupt, to be levied only upon the property attached.” Under the statute of the state of Illinois the attachment was dissolved by the substitution of a bond, and the court held that the right to- get a judgment for the purpose of enforcing the lien depended, not upon any provision of the bankrupt act, but upon the extent of the authority of the state -court under the local law. Here there is no lien to enforce, but simply a suit upon a debt that was released by the declaration of insolvency.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and McClellan , J.J., concur.