Southern Ry. Co v. Cole

• Decision Date: 20 September 1934
• Docket Number: No. 23732.,23732.
• Citation: 176 S.E. 512,49 Ga.App. 635
• Parties: SOUTHERN RY. CO. v. COLE.
• Court: Georgia Court of Appeals

49 Ga.App. 635

176 S.E. 512

SOUTHERN RY. CO.

v.COLE.

No. 23732.

Court of Appeals of Georgia, Division No. 2.

Sept. 20, 1934.

Syllabus by the Court.

1. A trustee in bankruptcy may institute a suit for the collection of a debt due the bankrupt, without having obtained from any court an order or written authority so to do.

2. A trustee in bankruptcy, having title to a chose in action of the bankrupt which is a part of the bankrupt's estate, and subject to the claims of the bankrupt's creditors, may recover thereon of the debtor to the bankrupt, notwithstanding the debtor, without knowledge of the adjudication of bankruptcy or of the filing of the petition for bankruptcy, paid the amount of the debt to the bankrupt.

Error from City Court of Carrollton; J. J. Reese, Judge.

Petition by H. R. Cole, as trustee in bankruptcy of Jessie Elton McEwen, against the Southern Railway Company. To review a judgment overruling a demurrer to the petition, defendant brings error.

Affirmed.

Boykin & Boykin, of Carrollton, and Maddox, Matthews & Owens, of Rome, for plaintiff in error.

Robert D. Tisinger, of Carrollton, for defendant in error.

STEPHENS, Judge.

In the petition as amended of H. R. Cole, as trustee in bankruptcy of Jessie Elton McEwen, against the Southern Railway Company, to recover the sum of $134.14 alleged as due by the defendant, Southern Railway Company, to McEwen, the bankrupt, it was alleged that the sum sued for was "wages earned" by McEwen from December 1, 1932, to December 23, 1932, inclusive; that McEwen filed a voluntary petition in bankruptcy on December 23, 1932, and on the same day was adjudicated a bankrupt; that after the adjudication of bankruptcy the defendant, without any knowledge of the filing of the petition for bankruptcy and of the adjudication of bankruptcy, paid the amount of the debt to McEwen, and has, after demand on it for payment by the plaintiff, refused payment to the plaintiff. A general demurrer to the petition, and also a demurrer upon the ground that no right of action in the plaintiff was shown, because it did not appear that the maintenance of the suit by the plaintiff was authorized by any order of court, were overruled. The defendant excepted.

1. A trustee in bankruptcy may institute a suit in a state court for the collection of a debt due the bankrupt without having first obtained from any court an order or written authority so to do. Traders' Insurance Co. v. Mann, 118 Ga. 381 (5), 45 S. E. 426; McLanahan v. Blackwell, 119 Ga. 64, 45 S. E. 785; Chalman v. Dodd, 23 Ga. App. 653, 99 S. E. 150.

2. The title to property of a bankrupt's estate vests in the trustee as of the date of the adjudication. National Bankruptcy Act of 1898, § 70, as amended (11 USCA § 110). An adjudication of bankruptcy is a notorious judicial act of which all persons are bound to take notice. Mueller v. Nugent, 184 U. S. 1, 22 S. Ct. 269, 46 L. Ed. 405; Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 32 S. Ct. 96, 56 L. Ed. 208; Wickersham v. Nicholson, 14 Serg. & R. (Pa.) 118, 16 Am. Dec. 478; Mays v. Manufacturers' National Bank, 64 Pa. 74, 3 Am. Rep. 573; Hitchcock v. Sedgwick, 2 Vernon, 156 (Eng.). Although a debtor to a bankrupt at the time of the commencement of the bankruptcy proceedings may, after the adjudication of bankruptcy and without actual notice or knowledge thereof, have paid the debt to the bankrupt, Hie trustee can, after the title to the chose in action represented by the debt has become vested in him by reason of the adjudication of bankruptcy, maintain an action against the debtor to recover the amount of the debt. Authorities...