Kendrix v. Superior Egg Co., 37648

• Decision Date: 18 May 1959
• Docket Number: No. 37648,No. 2,37648,2
• Citation: 109 S.E.2d 59,99 Ga.App. 575
• Parties: Hazel L. P. KENDRIX v. SUPERIOR EGG COMPANY, Inc., et al
• Court: Georgia Court of Appeals

Page 59

109 S.E.2d 59

99 Ga.App. 575

Hazel L. P. KENDRIX v. SUPERIOR EGG COMPANY, Inc., et al.

No. 37648.

Court of Appeals of Georgia, Division No. 2.

May 18, 1959.

R. B. Pullen, R. E. Llorens, Atlanta, for plaintiff in error.

C. M. Seward, Atlanta, for defendants in error.

Syllabus Opinion by the Court.

TOWNSEND, Judge.

1. A motion to dismiss the bill of exceptions in this court has been made on the grounds that certain pleadings filed in the trial court were not specified as material parts of the record in the bill of exceptions; that the plaintiff in error has not shown that the costs in the trial court were paid or filed a bond for the eventual condemnation money; that the plaintiff in error did not take proper action relative to the order of the referee in the Bankruptcy Court, and that the plaintiff in error did not properly attack the garnishment proceeding in the State courts. None of these grounds would be cause for dismissal of the bill of exceptions in this case. As to the first, there is no motion for diminution of record by either party. The second and third apparently refer to Code, § 6-105 applying to appeals from inferior judicatories. The remaining grounds appear to go to the merits of the case. The motion to dismiss the bill of exceptions is denied.

2. Superior Egg Company, Inc., obtained a consent judgment against Hazel Kendrix in the Civil Court of Fulton County on October 15, 1957, in the principal sum of $2,341.77 plus interest and attorney's fees, the same being a simple action on a promissory note in the same amount. Within four months, on October 29, 1957, the judgment debtor filed a voluntary petition in bankruptcy in the United States District Court in which the judgment was duly scheduled, and she was discharged in bankruptcy on September 19, 1958. Thereafter the judgment creditor filed an affidavit and bond in garnishment in the Civil Court of Fulton County against Kroger Stores, Inc., as garnishee and the latter paid into court the sum of $416.96. The judgment debtor brought a money rule against the clerk of court praying for a rule nisi to show cause why the fund should not be paid over to her, and, on he hearing before the trial judge 'based on the pleadings, response and judgment' in the original case, the judgment debtor's claim was denied. The court took into consideration the following order of the U. S. District Court, which he held had the effect of not granting a discharge in bankruptcy to the judgment debtor as against the objecting creditor: 'Order on hearing on objection to discharge. The objection to discharge filed by Superior Egg Company, Inc., having come on for hearing, and after hearing therein it appearing that the debt of the said objector creditor may be a debt not dischargeable in this proceeding, but this fact not having been determined now by this court, and it appearing further that the objection is not one which would be a bar to a general discharge of this bankrupt, it is hereupon considered and ordered that the objection of the Superior Egg Company, Inc., be and the same is hereby overruled and denied; provided, however, that the discharge of said bankrupt is without prejudice to the right of the Superior Egg Company, Inc., to have determined by proper tribunal the question of whether or not this debt is dischargeable or affected by this proceeding.'

In so ruling the court erred for the reason that nothing appears in the record here to indicate that the judgment on the note case was not dischargeable...