First Nat. Bank of Denver v. Gibson

• Decision Date: 17 April 1906
• Citation: 221 Ill. 295,77 N.E. 562
• Parties: FIRST NAT. BANK OF DENVER, COLO., v. GIBSON.
• Court: Illinois Supreme Court

221 Ill. 295

77 N.E. 562

FIRST NAT. BANK OF DENVER, COLO.,

v.GIBSON.

Supreme Court of Illinois.

April 17, 1906.

Error to Circuit Court, Tazewell County; T. N. Green, Judge.

Action by First National Bank of Denver, Colo., against John T. Gibson. Defendant having been discharged in bankruptcy after judgment, plaintiff caused an execution to be issued and certain real estate sold thereon, and, the judgment being still unsatisfied, caused another execution to be issued and levied on other real estate, when defendant filed a petition to vacate such levies and to restrain the issuance of further executions on the judgment. Plaintiff answered the petition, and from an order sustaining a demurrer to such answer, plaintiff brings error. Dismissed.

Judson Starr, for plaintiff in error.

W. I. Slemmons and Welty, Sterling & Whitmore, for defendant in error.

On February 5, 1901, the plaintiff obtained a judgment in assumpsit in the circuit court of Tazewell county for the sum of $15,545.62 upon four promissory notes signed by the defendant. On November 30, 1903, the defendant was discharged in bankruptcy by the United States District Court. The judgment of plaintiff was duly shown on the schedules attached to the defendant's bankruptcy petition. The plaintiff filed a claim on said judgment and resisted the application for the discharge. The discharge was granted June 1, 1904, and the plaintiff appealed to the Circuit Court of Appeals, where the action of the lower court was affirmed. After the defendant was adjudged a bankrupt his wife died testate, without children, the owner of considerable real property which she had inherited and purchased before her marriage. The defendant renounced the will, and in the circuit court of Tazewell county certain lands in McLean county were set off in partition to him. On December 13, 1904, the plaintiff caused an execution to be issued to the sheriff of McLean county, and it was levied upon the real estate of the defendant. On January 14, 1905, the land was sold for $7,500 and a certificate of purchase issued to the plaintiff. On January 19, 1905, the plaintiff caused execution to be issued to the sheriff of Tazewell county, and on January 21, 1905, it was levied on certain real estate in that county which it is claimed did not belong to the defendant. The defendant then filed his petition in the circuit court of Tazewell county, asking that the execution to the sheriff of McLean county, and the sale thereunder, be set aside; that the sheriff of Tazewell county release the levy made on January 19, 1905, and return the execution upon which the same was made; that the clerk of the circuit court of Tazewell county, and his successors, be ordered to issue no other execution on said judgment; and that the plaintiff be forever restrained from having any further executions issued on said judgment. The plaintiff answered the petition and the defendant demurred to the answer. The demurrer was sustained, and, the plaintiff electing to stand by its answer, an order was entered granting the relief asked in defendant's petition. To reverse this judgment a writ of error has been prosecuted to this court.

WILKIN, J. (after stating the facts).

The plaintiff in error claims that the judgment should be reversed for the following reasons: ‘(1) That under the national bankruptcy act of 1898, as amended in 1903, the liability which arises from the making of false pretenses and false representations, not in writing, in obtaining property, is properly a matter for the determination of the state court after a discharge in bankruptcy, whenever the discharge in bankruptcy is properly pleaded to prevent the enforcement of the debt which grew out of the false representations and pretenses, and that it would be inequitable to grant equitable relief where false representations are the basis of it. (2) That the bankrupt must himself be the active party and proceed in apt time to have a judgment of record canceled of record, and the debt is not to be treated as one paid in fact, nor the judgment as satisfied in...