In re Weaver

• Decision Date: 08 December 1904
• Parties: In re WEAVER.
• Court: U.S. District Court — Northern District of Georgia

144 F. 229

In re WEAVER.

United States District Court, N.D. Georgia, Northwestern Division.

December 8, 1904

M. B Eubanks, for bankrupt.

Paul H Doyal and W. H. McHenry, for objectors.

NEWMAN District Judge.

The question presented in this case is an interesting one. The bankrupt has made application for discharge. A judgment creditor, whose judgment was obtained within four months of the institution of the bankruptcy proceedings, asks that the discharge be stayed to enable him to enforce his judgment against exempt property, under the practice stated in Lockwood v. Exchange Bank, 190 U.S. 294, 23 Sup.Ct 751, 47 L.Ed. 1061.

The Supreme Court of Georgia, in McKenney v. Cheney, 118 Ga. 387, 45 S.E. 433, decided that the lien of a judgment although obtained within four months of the filing of the petition in bankruptcy by the defendant, was not lost as between the judgment creditor and the bankrupt so as to prevent the levy of the execution issuing on such judgment on property set apart as exempt by the court of bankruptcy. In this case the judgment was proven in bankruptcy, but by leave of the court the plaintiff in the judgment was allowed to withdraw the same from proof, without prejudice, for the purpose of proceeding against the property which had been set apart by the trustee as exempt. If the proof of a judgment in view of its subsequent withdrawal from proof by leave of the court, does not affect the lien which the judgment would have as against exempt property as if it had not been proven at all, then no reason exists why the bankrupt should not have his discharge, because, as determined in McKenney v. Cheney, supra, and rightly determined I think, the discharge in bankruptcy would be no bar to the enforcement of such judgment against the exempt property. I am wholly unable to see how the proof of a judgment could in any way affect the lien the judgment would otherwise have, where, by leave of the court, it was withdrawn from proof. It was proven in bankruptcy as a judgment, and withdrawn by the terms of the order as a judgment. While it is true that, as this judgment was obtained within four months, it could only have participated in the assets to be administered by the court of bankruptcy on a parity with general creditors, because, as against other creditors, the lien was dissolved by virtue of the proceeding in bankruptcy, still I do not see how the lien of the judgment would be...