Evans v. Rounsaville

• Decision Date: 09 June 1902
• Citation: 42 S.E. 100,115 Ga. 684
• Parties: EVANS v. ROUNSAVILLE et al.
• Court: Georgia Supreme Court

42 S.E. 100

115 Ga. 684

EVANS v. ROUNSAVILLE et al.

Supreme Court of Georgia

June 9, 1902

Syllabus by the Court.

1. While a discharge in bankruptcy releases the bankrupt from a debt which is provable under the bankrupt act of 1898, and which is not within the excepted classes, and takes away from the creditor the right to proceed against his debtor in personam to recover that debt, yet a valid lien created on the property of the bankrupt more than four months before the filing of his petition in bankruptcy is not affected by his discharge. After discharge, a creditor holding such a lien who has not proved his debt in bankruptcy, may proceed to enforce it against the property of the bankrupt in the state court.

2. An exemption assigned and set apart by the bankrupt court under the homestead laws of this state is no more subject to levy and sale than if it had been set aside by the ordinary of a county having proper jurisdiction. No reason appears in the record why the exemption set apart was not good as against the lien of the plaintiff in execution in the present case.

3. The trial judge erred in refusing to sanction the petition for certiorari, not because the lien of the creditor was released, but because the facts do not show that the lien can be enforced against the property to which it attached because of the exemption.

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by Rounsaville & Bro. against E. R. Evans. Judgment for plaintiffs was affirmed on certiorari, and defendant brings error. Reversed.

M. B Eubanks, for plaintiff in error.

C. E. Carpenter, for defendants in error.

LITTLE J.

There was tried in a justice's court in Floyd county the case of Rounsaville & Bro. against Evans. The trial resulted in a verdict for the plaintiffs, and the defendant filed a petition to the superior court seeking a writ of certiorari. This petition made the following allegations: On August 8, 1901, in the justice's court designated, the stated case was tried, the issue arising on the foreclosure of a mortgage on personal property, and an illegality thereto. The mortgage was dated January 17, 1899, and was given to secure three notes of $75 each, described in the petition. It was foreclosed on March 4, 1901, and was levied in the same month on a horse and mule which are also described. To the levy of the execution on foreclosure the defendant filed an illegality, in which he alleged that on the 4th of March, 1901, he filed in the United States district court for the Northern district of Georgia his voluntary petition in bankruptcy, and on said date was duly adjudged a bankrupt; that, after having duly conformed to all the requirements of the bankrupt act, he was, on May 4, 1901, granted a discharge in bankruptcy; that said discharge operated to discharge him from all debts which existed against him prior to March 4, 1901, which were provable in bankruptcy; that plaintiffs' debt existed prior to that time; that they were notified of the pendency of the bankruptcy petition, and had full opportunity to be heard; that he had been discharged from the debt which the mortgage was given to secure, and for that reason the mortgage fi. fa. was proceeding illegally. On the trial it was admitted that plaintiffs in fi. fa. were duly notified of the pendency of the bankruptcy proceedings, that plaintiffs' debt existed prior to the bankruptcy proceedings, and that the property levied on was scheduled and set apart as an exemption to him by the trustee in bankruptcy. A certified copy of defendant's discharge in bankruptcy in the usual and proper form was introduced in evidence. On the presentation of this petition the judge of the superior court passed the following order: "This petition for certiorari read and considered. Giving to the bankrupt act approved July 1, 1898, the construction put upon it by the supreme court of this state in the case of Carter v. Bank, reported in 109 Ga., at page 573, 35 S.E. , at page 61, I am of the opinion that the justice court rightly decided the questions presented by the case. I therefore decline to sanction the petition." To this order and judgment the petitioner excepted.

1. Inasmuch as we reverse the judgment in this case, and the trial judge predicated that judgment on the ruling made in Carter v. Bank, 109 Ga. 573, 35 S.E. 61, we refer to that case at the outset of this opinion...