Mitchell v. Chastain Finance Co.

• Decision Date: 15 February 1977
• Docket Number: No. 3,No. 53110,53110,3
• Citation: 141 Ga.App. 512,233 S.E.2d 829
• Parties: R. T. MITCHELL, Jr. v. CHASTAIN FINANCE COMPANY
• Court: Georgia Court of Appeals

Page 829

233 S.E.2d 829

141 Ga.App. 512

R. T. MITCHELL, Jr. v. CHASTAIN FINANCE COMPANY.

No. 53110.

Court of Appeals of Georgia, Division No. 3.

Feb. 15, 1977.

Rehearing Denied March 8, 1977.

Redfern, Butler & Morgan, James E. Massey, Atlanta, for appellant.

Worozbyt & Nodvin, Marvin P. Nodvin, Atlanta, for appellee.

MARSHALL, Judge.

Appellant Mitchell brings this appeal from a grant of summary judgment to appellee Chastain Finance Company.

The facts show that Chastain Finance entered into a loan agreement with Mitchell in March, 1960, which amounted to a refinancing of a previous loan arrangement between these same parties. The parties are in agreement that the debt was never paid. Chastain Finance obtained a default judgment in the Civil Court of DeKalb County against Mitchell in 1966 for the amount of the loan plus interest and costs. A fieri facias was issued on this judgment in June, 1966. There is further evidence that in July, 1970, Mitchell received a final discharge in bankruptcy, having scheduled as an indebtedness therein the judgment held by Chastain Finance against him. In September, 1970, Mitchell obtained a permanent stay by the Civil Court of DeKalb County of any further prosecution on the judgment and execution. There is circumstantial evidence that in October, 1970, Mitchell agreed to a consent order for consideration and issuance by the Civil Court of DeKalb County limiting the permanent stay of further enforcement of the judgment and execution only as to such real and personal property as to which Mitchell came into possession and acquired title after the date of discharge in bankruptcy with full rights in Chastain Finance to pursue its judgment as to real or personal property in Mitchell's possession prior to the discharge. Though the records of the Civil Court of DeKalb County were destroyed or lost upon its conversion to the State Court of DeKalb County, the parties agreed at oral argument of this case, that the above-mentioned order limiting the permanent stay was signed and issued by the Civil Court in October, 1970.

The parties are in further agreement and the facts support the conclusion that the judgment and execution became dormant after seven years of inactivity (Ga. Code § 110-1001(1)). The present action was brought in the form of a scire facias to revive the dormant judgment and execution and was brought within the three years following dormancy as required by pertinent statute (Ga. Code §§ 110-1002, 1003).

Mitchell enumerates as error the grant of summary judgment to Chastain Finance and bases his contention on several prongs. He complains that the indebtedness was discharged by the bankruptcy proceedings; that the original indebtedness was usurious, thus void and unenforceable; that even assuming the lien created by the judgment survived bankruptcy, it was lost when the judgment became dormant in 1973; and finally that the order reviving the lien beyond the discharge in bankruptcy of October, 1970, was never signed by the judge of the Civil Court of DeKalb County. Held :

1. The first and fourth noted enumerations of error are related and will be treated together. The first enumeration of error asserts that the enforcement of the lien arising out of the judgment was barred by the subsequently obtained discharge in bankruptcy. Thomas v. Towns, 66 Ga. 78. This argument ignores the consent order entered into by Mitchell after the discharge in bankruptcy, limiting the effect of the discharge to property obtained after the date of the discharge. Revival of a prior obligation following discharge is permissible. A discharge in bankruptcy while releasing the bankrupt from the legal liability to pay a debt that was provable in the bankruptcy, leaves him under a moral obligation that is sufficient to support a new promise to pay the debt. The theory is that the discharge destroys the remedy but not the indebtedness. It follows that a debt barred by discharge in bankruptcy may be revived by a new promise made after the discharge. Zavelo v. Reeves, 227 U.S. 625, 629, 33 S.Ct. 365, 57 L.Ed. 676; Dicks v. Andrews, 132 Ga. 601(1), 64 S.E. 788; Moore v. Trounstine, 126 Ga. 116, 54 S.E. 810; Marshall v. State, 127 Ga.App. 805, 809, 195 S.E.2d 469.

However, Mitchell contends that the consent order as appearing in the record was not signed by the judge and thus had no legal efficacy. The record does reflect that following discharge, counsel for Mitchell sent a copy of an all-inclusive and permanent stay issued by the Civil Court of DeKalb County to counsel for Chastain Finance. That same day Chastain Finance's counsel sent a draft copy of the questioned and more limited consent order to Mitchell's counsel asking for agreement and signature. A letter signed by Mitchell's counsel returned the consent order indicating agreement and accomplishment of the signing. Thereafter a letter addressed to the court by Chastain Finance indicated that the consent order, signed by both parties, was forwarded to the court for promulgation. Counsel for Chastain Finance indicated in argument that he had seen the original order signed by the court. Counsel for Mitchell, in oral argument, stated he would not contest that assertion.

Under the above-stated circumstances, this constituted an admission in judicio by Mitchell's counsel of the validity of the order and dispensed with the necessity of further proof thereof. Boardman v. Ga. R. Bank &c Co., 127 Ga.App. 63(3), 192 S.E.2d 390. See Central of Ga. Ry Co. v. Johnston, 106 Ga. 130(1), 32 S.E. 78; N.A.A.C.P. v. Pye, 96 Ga.App. 685, 686, 101...