Tune v. Vaughan
| Decision Date | 12 April 1926 |
| Docket Number | 302 |
| Citation | 281 S.W. 906,170 Ark. 971 |
| Parties | TUNE v. VAUGHAN |
| Court | Arkansas Supreme Court |
Appeal from Miller Circuit Court; James H. McCollum, Judge affirmed.
Motion overruled, and judgment affirmed.
John N Cook, for appellant.
Will Steel, for appellee.
On November 9, 1923, appellees sued appellant in the Miller Circuit Court on a promissory note which he had signed as an accommodation indorser for appellant and had been required to pay. On January 2, 1924, appellant filed in the District Court of the United States for the Eastern District of Texas his petition and schedule in bankruptcy, and was on January 14, 1924, adjudged a bankrupt, and on March 29, 1924, was granted a discharge from all his indebtedness including the note above mentioned. Upon filing the petition the referee in bankruptcy mailed to appellee notice thereof. No trustee in bankruptcy was ever appointed, because there were no assets. On June 12, 1924, at a regular term of the Miller Circuit Court, judgment was taken by appellee against appellant by default, and, after the adjournment of the term at which this judgment was rendered, process was issued to collect the judgment. Thereupon appellant filed in the Miller Circuit Court a petition under § 6290, C. & M. Digest, to vacate this judgment, and upon the hearing of this petition same was overruled, and this appeal is prosecuted to reverse that action.
The petition to vacate the judgment recites the facts stated above, and alleges that the petitioner is inexperienced in court proceedings, and that he did not employ an attorney to represent him in the suit pending in the Miller Circuit Court for the reason that he was of the opinion, generally entertained by laymen, that his discharge in bankruptcy relieved him from all liability and operated as a stay and bar of appellee's suit, and that he had no notice that appellee would proceed with his suit after the discharge in bankruptcy had been obtained.
Appellant was duly served with summons when the suit was filed against him in the Miller Circuit Court, and he was not entitled to any other notice. He was required thereafter to take notice of any proceeding in that court.
Upon filing his petition in bankruptcy appellant might have procured a stay of proceedings in the State court, and, if necessary, might have enjoined any proceedings therein pending the hearing of his petition in bankruptcy. Collier on Bankruptcy (13th ed.), vol. 1, page 410. But he did not do this. Appellant received his discharge on March 29, 1924, and he thereafter had ample time to plead his discharge in bar of the pending suit in the Miller Circuit Court, but this was not done. He suffered judgment to be rendered against him under the misapprehension that his discharge automatically terminated the pending suit against him. In this he was mistaken.
In Loveland on Bankruptcy, vol. 2, page 1400, § 802, it is said: ...
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...prosecuting it to judgment. 7 C. J. 349; Bankruptcy Act, § 63 (11 USCA § 103); Woods v. Berry (Cal. App.) 296 P. 333, 335;Tune v. Vaughan, 170 Ark. 971, 281 S. W. 906. The jurisdiction of the state court is entirely separate and independent of that of the federal court. The federal court mi......
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...plead his discharge in bankruptcy in an action on a debt so discharged cannot have a subsequent default judgment vacated. Tune v. Vaughan, 170 Ark. 971, 281 S.W. 906; cf. Bell v. Cunningham, 81 N.C. 83. Finally, execution may be levied on the property of a bankrupt acquired after his discha......
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