Hayer v. Comstock

• Decision Date: 20 December 1901
• Citation: 88 N.W. 351,115 Iowa 187
• Parties: C. F. HAYER v. FRANK E. COMSTOCK, Appellant
• Court: Iowa Supreme Court

88 N.W. 351

115 Iowa 187

C. F. HAYER v. FRANK E. COMSTOCK, Appellant

Supreme Court of Iowa, Des Moines

December 20, 1901

Appeal from Wright District Court.--HON. S. M. WEAVER, Judge.

PLAINTIFF states as his cause of action that he executed a promissory note with defendant, and as his surety, to the State Bank of Eagle Grove; that the defendant failed to pay said note; and the plaintiff was compelled to, and did, pay the same to the bank on or about April 1, 1899, in the sum of $ 193.66, for which, with interest, he asks judgment. The defendant answered that on December 6, 1898, he was duly and legally adjudged to be a voluntary bankrupt under the acts of congress; that said note was scheduled as due to said bank that the bank was notified of said proceeding; that the claim was a provable debt; that the bank filed said note and roved the same as a debt against defendant; that plaintiff had actual knowledge of said proceedings; and that on April 3 1899, defendant was discharged from all his debts, and a certificate to that effect issued. Defendant attached the certificate, which shows that he was "discharged from all debts and claims which existed on the 6th day of December, 1898," on which day the petition for adjudication was filed by him, "excepting such debts as are by law excepted from the operation of such discharge in bankruptcy." Plaintiff replied, admitting the proceedings in bankruptcy as alleged; "but plaintiff alleges that on the 6th day of December, 1898, the defendant was not indebted to him in any sum whatever. The plaintiff further states that the said bank of Eagle Grove, Iowa did not call upon the plaintiff to pay said note as surety until after December 6, 1898, and after the defendant was in fact bankrupt." The case was submitted to the court upon an agreed statement of facts, and judgment rendered in favor of plaintiff. Defendant appeals.

Reversed.

Sylvester Flynn for appellant.

Filkins & Schaffter for appellee.

OPINION

GIVEN, C. J.

I. The agreed statement of facts is as follows: "On May 26, 1900, the following agreed statement of facts was filed with the clerk of the Wright county district court, to wit: 'It is hereby agreed by and between the plaintiff and the defendant in the above-entitled action that on December 2, 1893, the plaintiff, C. F. Hayer signed the note attached to this statement as surety for the defendant; that the defendant failed and neglected to pay said note; that on April 1, 1899, the plaintiff had to, and did, pay the full amount of said note, to wit, $ 193.66, to the State Bank at Eagle Grove, Iowa, and that no part of said amount has been repaid him; that in December, 1898, the defendant filed his petition in the district court of the United States for the Northern district of Iowa, and was duly and legally adjudged a voluntary bankrupt under the acts of congress relating to bankruptcy; that said note was duly scheduled in said bankruptcy proceedings as one of defendant's liabilities; that in such schedule the State Bank of Eagle Grove, Iowa, payee of said note, was named as the owner and holder thereof, and was duly notified of each step in said bankruptcy proceedings as required by law; that in December, 1898, plaintiff, C. F. Hayer, was informed by others of the pendency of said bankruptcy proceedings, and had actual knowledge thereof after the filing of the petition, although he was not listed as a creditor therein; that on April 3, 1899, this defendant was by the judgment of said United States court discharged from all his debts; that a certificate of such discharge was issued by said court and delivered to defendant, a copy of which certificate is attached to defendant's answer herein, and is hereby made a part of this statement of facts.'" The certificate of discharge is: "From all debts and claims which existed on the 6th day of Dec., A. D. 1898, on which day the petition for adjudication was filed by him, except such debts as are by law excepted from the operation of such discharge in bankruptcy." This claim is not of the class excepted by law. The plaintiff claims that as he had not, as surety, paid the note at the time the petition for adjudication in bankruptcy was filed, there was no debt then due to him, and he could not have his claim scheduled against the bankrupt's estate; that he had no provable claim; and that the discharge does not apply to his claim; while the defendant contends that under the facts the discharge does not apply and that therefore the court erred in rendering judgment against him.

Section 17 of the bankruptcy law of 1898, under which this proceeding was had, provides that "a discharge in bankruptcy shall release a bankrupt from all of his provable debts," except certain debts of which this is not one. Section 63 in specifying debts which may be proved and allowed, names the following: among others: "(1) A fixed liability as evidenced by judgment or an instrument in writing absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did not bear interest. * * * (4) Founded upon an open account, or upon a contract, express or implied." Section 16 provides that the...