Rice v. Guider

• Decision Date: 02 March 1936
• Docket Number: No. 15.,15.
• Citation: 275 Mich. 14,265 N.W. 777
• Parties: RICE v. GUIDER.
• Court: Michigan Supreme Court

275 Mich. 14

265 N.W. 777

RICE

v.GUIDER.

No. 15.

Supreme Court of Michigan.

March 2, 1936.

Action by Elver L. Rice against Carl Guider, wherein, after judgment for plaintiff, plaintiff sued out a writ of garnishment. From an order staying the garnishment proceeding and releasing the garnishee defendant, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Kelly S. Searl, judge.

Argued before the Entire Bench.

Fred Dye, of Detroit, for appellant.

Aldrich Baxter, of Detroit, for appellee.

WIEST, Justice.

Plaintiff brought suit in assumpsit against defendant upon a note and other promissory obligations and obtained judgment, less a small set-off. After judgment, defendant filed a voluntary petition in bankruptcy, listed the judgment as an obligation and was, in due course, discharged. After the discharge, plaintiff sued out a writ of garnishment on the judgment. Defendant petitioned the court to stay the writ and the court granted the petition. Plaintiff reviews by appeal, claiming that the judgment, in large part, was based upon a note given for money obtained under false representations and, de hors the judgment record, claimed that defendant owed plaintiff $722 and, representing that he wanted to pay the debt and obtain some money for a few days, when he was to have money from elsewhere, he gave plaintiff a post-dated check for $1,000, and received plaintiff's check for $722, which he cashed. The check given plaintiff was no good and later defendant gave plaintiff his note for $722, and upon a renewal note plaintiff brought suit to have recovery upon the note and other obligations of defendant and, therefore, the judgment, in large part, was based upon the fraud perpetrated in the matter of the check and for that part the discharge was no release from liability.

Plaintiff's judgment record is the usual one in an action of assumpsit upon pecuniaryobligations. Plaintiff's demands, reduced to judgment, amounted to $1,247.65, inclusive of the $722 check, merged in the note and renewal thereof.

Fraudulent procurement of money may be waived and an action in assumpsit for recovery of the amount maintained.

Plaintiff's judgment was listed by the bankrupt in the schedule of his obligations and, on its face and upon the judgment record, was properly scheduled and provable.

The Bankruptcy Act, § 17 (11 U.S.C.A. § 35), provides:

‘A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * * (second) are liabilities for obtaining property by false pretenses or false representations.’

Assuming there was such fraud by defendant in obtaining and chashing the check for $722, has it survived acceptance of the note, renewal thereof, suit thereon, along with other claims, with judgment in an action of assumpsit, and the court record devoid of any intimation of fraud?

Whether or not a judgment was obtained in an action for fraud is to be determined by an inspection of the entire record in the case in which the judgment was rendered. Louisville & Nashville R. R. Co. v. Bryant, 149 Ky. 359, 149 S.W. 830.

In Hallagan v. Dowell, 179 Iowa, 172, 161 N.W. 177, it was said:

‘The judgment sued on is silent concerning what it rests upon. But it is permitted to go behind the judgment and ascertain from the pleadings and the record the basis of the judgment (Bever v. Swecker, 138 Iowa, 721, 116 N.W. 704);...