Fields v. Rust

• Decision Date: 11 June 1904
• Citation: 82 S.W. 331
• Parties: FIELDS et al. v. RUST et al.
• Court: Texas Court of Appeals

82 S.W. 331

FIELDS et al. v. RUST et al.

Court of Civil Appeals of Texas.

June 11, 1904.

Appeal from Wilbarger County Court; J. A. Nabers, Judge.

Action by Amanda M. Rust and another against S. H. Fields, garnishee, and another. Judgment for plaintiffs, and defendants appeal. Modified.

F. P. McGhee and Talbert & Berry, for appellants. Hall & Stokes, for appellees.

CONNER, C. J.

This is an appeal from a judgment of the county court of Wilbarger county in appellees' favor in a garnishment proceeding instituted by them in a justice's court of that county, wherein it was alleged that the garnishee, S. H. Fields, held certain moneys belonging to appellant J. T. Scott, and which appellees thus sought to have applied in payment of a judgment owned by appellee Amanda M. Rust against said J. T. Scott, rendered on the 29th day of November, 1897. It appears that on said date appellee Amanda M. Rust, who was then named Amanda M. Douglass, secured a judgment against J. T. Scott and others for the sum of $139.10, with costs; that this judgment has never been paid; that on the 9th day of December, 1899, said Scott filed a voluntary petition in bankruptcy in the District Court of the United States for the Northern District of Texas, and was adjudged a bankrupt. The usual published notice to his creditors required by the bankrupt law was given, and on the 5th day of February, 1900, a final judgment of discharge in his favor was entered. Appellee Amanda M. Rust, however, had no actual knowledge or notice of any of the proceedings in bankruptcy until after the institution of this suit. After the rendition of the judgment in favor of Amanda M. Douglass, and prior to said 9th day of December, 1899, when J. T. Scott was adjudged a bankrupt, to wit, in October, 1898, she intermarried with the appellee J. M. Rust, and removed to the state of Tennessee, where she has since resided. In the bankruptcy proceedings J. T. Scott filed schedules of his indebtedness, of which three copies were offered in evidence herein. In the first two of such copies the judgment in question is scheduled as follows, to wit: Under the heading, "Names of holders so far as known," "Mrs. Amanda Douglass;" under the heading, "Residence," "P. O. not known. Wichita County;" under the heading, "Nature of liability," etc., "Note given by R. F. Scott, and signed by me and H. J. Stanley as sureties, and now reduced to judgment in J. P. court in Wilbarger county in about 1897, for about $139.10." In the other copy of the schedule neither the name nor residence of the holder is stated, the nature of the liability, however, being stated as in the other copies mentioned. Upon the service of the writ of garnishment S. H. Fields answered that he was indebted to J. T. Scott in the sum of $197.33, but, referring to the bankrupt proceedings, prayed that Scott might be cited to appear and be required to answer. Scott accordingly appeared, and pleaded in bar of the judgment forming the basis of the garnishment proceedings the said judgment of discharge in the federal court. The result of the trial was a judgment in appellees' favor for the money in the garnishee's possession, and in his favor for the sum of $20 as attorney's fee.

A judgment of discharge under Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], by the very terms of the law itself, does not apply to or bar such debts of the bankrupt as "have not been duly scheduled in time for proof of allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy." See section 17, par. 3, Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]. No such exception is to be found in the preceding bankrupt act of 1867. See section 33, Bankr. Act March 2, 1867, c. 176, 14 Stat. 533, as quoted in Brandenburg on Bankruptcy, p. 150. The only exceptions under the act of 1867 were "debts created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character." Hence it has been held in many cases under the bankrupt act of 1867 that provable debts not falling within the exceptions named therein were conclusively barred on collateral attack by a judgment discharging the bankrupt, even though such debt may not have been included in the schedules of the bankruptcy's debts, and even though the creditor may have been without notice of the proceedings. See Brown v. Causey, 56 Tex. 340; Blum v. Ricks, 39 Tex. 112; Alston v. Robinett, 37 Tex. 56; Black v. Blazo, 117 Mass. 17. It has also been frequently held that debts found to be within the exceptions named in the act of 1867 were not barred by the judgment discharging the bankrupt. See authorities in note to section 33, cited supra, in Brandenburg on Bankruptcy. We hence conclude...