Stovall v. Stipp , 82 Ind. App. 612 ( 1925 )

Action by appellant to renew a judgment.

To the complaint, appellee filed an answer in two paragraphs, the first a denial, and the second an answer of discharge in bankruptcy. Appellant's demurrer to the second paragraph of answer was overruled, to which ruling appellant excepted. There was a trial by the court which resulted in a finding and judgment for appellee.

The errors assigned are the action of the court in overruling appellants' demurrer to the second paragraph of answer, and in overruling his motion for a new trial.

There is merit in appellee's contention that appellant has waived the errors which he seeks to present for the reason that his brief contains no points and authorities. However, 1, 2. as appellant's counsel seem to have acted in good faith, and as we can readily determine the questions which he seeks to present, we conclude to decide the case on its merits. Appellant first contends that the judgment is not discharged because it was taken more than four months before the bankruptcy proceedings. There is nothing in this contention. Proof, as here, of a discharge in bankruptcy is a good defense against a suit to renew any judgment duly scheduled in bankruptcy unless fraudulently obtained or unless it appears that such judgment is excepted by statute from the operation of the discharge, and the burden of proof of fraud, or that such judgment is excepted from the discharge, is on the judgment creditor. Throop v. Griffin (1897), 180 Pa. St. 452, 36 A. 865; Boggs v. Dunn (1911), 160 Cal. 283, 116 P. 743; In reHale (1908), 161 Fed. 387; Kreitlein v. Ferger (1915),238 U.S. 21, 59 L. Ed. 1184; §§ 3461, 3462, 3565, Remington, Bankruptcy.

This burden appellant has not assumed, and there is no proof to that effect.

Appellant next contends that the decision of the trial court was erroneous because there was no averment or proof of notice of the bankruptcy proceeding to appellant, the judgment 3. creditor. But appellant's authorities to sustain this contention pertain to judgments that were not scheduled. The bankrupt act expressly provides that "a discharge in bankruptcy shall release a bankrupt from all of his provable debts except such as have not been duly scheduled," etc.

The second paragraph of answer averred that the judgment was duly scheduled by appellee and that appellee was discharged. The certificate of discharge was read in evidence, and there was proof that the judgment was duly scheduled. The court, therefore, did not err in its ruling. Beck Gregg Hardware Co. v. Crum (1906), 127 Ga. 94, 56 S.E. 242.

The judgment is affirmed.