Garner v. Hartsfield Loan & Savings Co.

• Citation: 174 S.E. 647,49 Ga.App. 199
• Decision Date: 23 May 1934
• Docket Number: 23383.
• Parties: GARNER v. HARTSFIELD LOAN & SAVINGS CO.
• Court: United States Court of Appeals (Georgia)

174 S.E. 647

49 Ga.App. 199

GARNER v. HARTSFIELD LOAN & SAVINGS CO.

No. 23383.

Court of Appeals of Georgia, First Division

May 23, 1934

Syllabus by Editorial Staff.

Execution on judgment against bankrupt who failed to plead discharge in suit pending in state court could be levied on property bankrupt acquired after discharge.

Error from Superior Court, Barrow County; W. W. Stark, Judge.

Execution proceeding by the Hartsfield Loan & Savings Company against L. O. Garner. To review an adverse judgment, defendant in execution brings error.

Affirmed.

Robert L. Russell, of Winder, and Pemberton Cooley and Alexander Stephens, both of Lawrenceville, for plaintiff in error.

Robert T. Efurd and Mose S. Hayes, both of Atlanta, for defendant in error.

Syllabus OPINION.

BROYLES, Chief Judge.

1. Where a discharge is granted in bankruptcy, pending a suit commenced in a state court, and the state court, subsequently to the discharge, renders a judgment against the bankrupt, and execution thereon is levied on certain property of the bankrupt, the property, although acquired after his discharge in bankruptcy, is subject to the execution, where the defendant (the bankrupt) in the suit in the state court failed to file a plea setting up his discharge in bankruptcy. In order for the bankrupt "to avail himself of his discharge he should have pleaded it in the pending suit. Failing to plead it, the subsequent judgment is not affected by such discharge, and is an enforceable lien against any property of the defendant. Finney v. Mayer, 61 Ga. 500." Crawford v. Bostwick-Goodell Co., 141 Ga. 356, 80 S.E. 1005. The cases cited by counsel for the plaintiff in error are distinguishable by their particular facts from the Crawford Case and the instant case.

2. The controlling facts of the Crawford Case, supra, and of this case are identical, and, under the ruling in the Crawford Case, the court in the instant case properly directed a verdict against the affidavit of illegality filed by the bankrupt.

Judgment affirmed.

MacINTYRE and GUERRY, JJ., concur.