Hargis v. Swope

• Decision Date: 22 February 1938
• Citation: 272 Ky. 257,114 S.W.2d 75
• Parties: HARGIS v. SWOPE, Judge, et al.
• Court: Kentucky Court of Appeals

114 S.W.2d 75

272 Ky. 257

HARGIS v. SWOPE, Judge, et al.

Court of Appeals of Kentucky

February 22, 1938

Original action by A. H. Hargis, petitioner, against Judge King Swope judge of the Fayette circuit court, and George E. DeLong clerk of the Fayette circuit court, for a mandatory injunction requiring them to abate all further proceedings against the petitioner, and to give effect of his alleged discharge in bankruptcy.

Application for mandatory injunction denied.

A. H Hargis, of Jackson, for petitioner.

James Park, of Lexington, for respondents.

CLAY Justice.

Joanna E. Hargis sued her husband, A. H. Hargis, in the Fayette circuit court for alimony and divorce from bed and board. By an agreed judgment Mrs. Hargis was allowed alimony in the sum of $250 a month. A. H. Hargis paid alimony for about three years and then quit. Mrs. Hargis then asked for a rule against him to show cause why he had not paid. He filed several answers seeking to set aside the agreed judgment on the ground of duress and fraud. The court refused to set aside the agreed order, and on appeal the judgment was affirmed. Hargis v. Hargis, 252 Ky. 198, 66 S.W.2d 59.

Thereafter Mrs. Hargis brought action No. 20619 in the Fayette circuit court against A. H. Hargis, Elbert Hargis, and G. G. Maloney to enforce the original judgment.

After certain steps had been taken in action No. 20619, A. H Hargis brought this original action in this court against King Swope, judge of the Fayette circuit court, and George E. DeLong, clerk of that court, for a mandatory injunction requiring them to abate all further proceedings against the petitioner, and to give effect to his discharge in bankruptcy. Briefly stated, the alleged facts relied on are: In the month of June, 1934, A. H. Hargis was adjudged a bankrupt by the United States District Court for the Eastern District of Kentucky, and on April 9, 1935, was granted a discharge in bankruptcy, an attested copy of which was filed. He filed in the bankruptcy proceeding a list of his creditors. Joanna E. Hargis and G. G. Maloney, as creditors, participated in the bankruptcy proceeding as witnesses, had their day in court, and their debts were discharged. Notwithstanding the respondents had full knowledge of the bankruptcy proceedings, they entered an order in action No. 20619 striking from the record petitioner's amended answer and plea in bar setting forth his discharge in bankruptcy. It is also alleged that said action of the respondents and all proceedings in the case were in violation of law and in contempt of the United States District Court for the Eastern District of Kentucky, and further alleged that all matters in bankruptcy are exclusive of state courts, and it was the legal duty of Judge King Swope when the discharge in bankruptcy was filed to dismiss the case, and all his acts and orders after the discharge were in gross violation of the federal laws in bankruptcy proceedings, and exceeded his authority and jurisdiction, and were void and of no effect. Judge Swope demurred to the petition, and, without waiving the demurrer, filed an answer which has been adopted by George E. DeLong as his answer, denying substantially all the allegations of the petition and pleading the following facts: On October 31, 1936, A. H. Hargis filed in action No. 20619 a "statement," in which pleading he alleged that on April 9, 1935, he had been discharged in bankruptcy by proper orders of the United States District Court for the Eastern District of Kentucky. Accompanying the pleading was an exhibit purporting to be a copy of an attested copy of an order signed by the clerk of said district court granting a discharge in bankruptcy to the said Hargis, and also another exhibit containing a copy of a list of his creditors as filed in the bankruptcy proceeding. Thereafter Joanna E. Hargis filed her reply denying that A. H. Hargis had ever been discharged, or had ever received any discharge, in bankruptcy, and also denying that any copy of such alleged discharge was filed with the said pleading of A. H. Hargis. She further alleged in her reply that her debts and judgment were for and arose out of claims for alimony, and were not dischargeable in bankruptcy. On November 27, 1936, A. H. Hargis filed a rejoinder, and by said pleadings issues were joined as to whether any discharge in bankruptcy had been granted to A. H. Hargis, and whether the judgment and claims in favor of Joanna E. Hargis were dischargeable or were for alimony. On January 30, 1937, the case was placed on the trial docket and an order of final submission was entered. No proof was offered, nor depositions taken or filed by or on behalf of A. H. Hargis relating to the issues made by the pleadings in regard to his alleged discharge in bankruptcy. On April 10, 1937, the order of submission was set aside, and the board of education of Jackson, Ky. was permitted to file its intervening petition to which Joanna E. Hargis filed her answer and response. The demurrer of the board of education of Jackson to the answer and response was sustained, and it was further ordered that the parties file briefs or present oral argument upon the final submission of the case at some date to be fixed by the court. On July 22, 1937, although the issues concerning the discharge in...