In re De Bock
| Decision Date | 09 May 1925 |
| Docket Number | 1264.,No. 1263,1263 |
| Citation | 14 F.2d 675 |
| Parties | In re DE BOCK. |
| Court | U.S. District Court — Northern District of California |
Thomas B. Leeper, of Sacramento, for objecting creditor.
Hughes, Bradford, Cross & Prior, of Sacramento, for bankrupt.
These matters rise out of an action for alienation of affections, in which Catherine M. Johnston, here an objecting creditor, obtained a judgment for $5,000 against the present bankrupts. Said Catherine M. Johnston also is purchaser of certain real property which was sold to her on execution sale to satisfy the judgment thus obtained. She also is holder of an unsatisfied judgment against the bankrupts, rendered in an action brought by her for the unlawful detainer of said property after its purchase by her. From the second judgment bankrupts have prosecuted an appeal to the Supreme Court of California, and said appeal is now pending. 244 P. 330.
Applications for discharges in bankruptcy have been duly made to this court, and the statutory period for proof of claims has elapsed. Various debts were listed in the schedules filed, but a single claim alone has been presented to the referee in each case; one based on the judgment in unlawful detainer.
The objecting creditor now asserts that there is no jurisdiction to grant a discharge, and moves that the proceedings be dismissed, alleging that said claim is nondischargeable; and, if dischargeable, nevertheless nonprovable.
The first objection is untenable, because the judgment in question did not, as has been urged, arise out of an action "for willful and malicious injuries to the person or property of another." Bankruptcy Act, § 17 (Comp. St. § 9601). The original alienation judgment was, it is true, based on such an injury; and in whatever form now existing, would be held to be nondischargeable. 7 C. J. 402; In re Colaluca (D. C. Mass.) 133 F. 255, 13 Am. Bankr. Rep. 292; Blackstock v. Blackstock (C. C. A. 8th Cir.) 265 F. 249, 45 Am. Bankr. Rep. 192. But a purchaser on execution sale, illegally restrained by the judgment debtor from the use of property there purchased, cannot properly be said to assert a claim based on a willful and malicious injury to the judgment creditor when he sues for unlawful detainer. It is of course wholly accidental that the purchaser is the judgment creditor, and that fact is immaterial.
As for the contention that the appeal from this judgment rendered it nonprovable in bankruptcy, there is a recent decision of the Circuit...
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Allen v. Lindeman
...and discharge in bankruptcy. Allard v. La Plain, 147 Wash. 497, 266 P. 688; Ernst v. Wise, Ohio Com.Pl., 94 N.E.2d 806; In Re De Bock (D.C.Cal.), 14 F.2d 675; Leicester v. Hoadley, 66 Kan. 172, 72 P. 318. Defendant attempts to distinguish these cases, arguing there is no requirement of proo......
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In re Walton Plywood, 50795.
...Ed. 1961), and irrespective of a state statute or rule to the contrary, Moore v. Douglas, 230 F. 399 (9th Cir. 1916); In re De Bock, 14 F.2d 675 (N.D.Calif.1925). The question here is whether a supersedeas bond on the appeal renders the judgment any less absolute, i. e., renders it "conting......
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