Wakelee v. Davis

• Decision Date: 21 January 1889
• Citation: 37 F. 280
• Parties: WAKELEE v. DAVIS.
• Court: U.S. District Court — Southern District of New York

37 F. 280

WAKELEE v. DAVIS.

United States Circuit Court, S.D. New York.

January 21, 1889

This action, commenced upon the equity side of the court, is based upon a judgment recovered in 1873, in a state court of California. The only specific relief demanded is for a money judgment. Briefly, these are the facts: In August and September, 1869, the defendant, Erwin Davis, made six promissory notes, aggregating $15,720, and delivered them for value, to Henry P. Wakelee. On the 30th of September 1869, Davis was adjudicated a bankrupt, on his own petition and Wakelee proved the notes against the estate. On the 28th June, 1873 Wakelee petitioned for leave to sue Davis upon the notes. The petition was granted, and on the 18th of November, 1873, upon service by publication, judgment was entered against Davis for $22,760. This judgment is now owned by the complainant and is the judgment sued on. In December, 1875, Davis applied for his discharge, and Wakelee filed specifications in opposition, charging Davis with various frauds under the bankrupt act. In March, 1876, Davis moved the court for an order dismissing these specifications, on the ground that Wakelee, since proving his debt, had obtained a judgment thereon by leave of the court, which judgment merged the debt, and was still valid and in force, and, having been obtained since the adjudication, would not be affected by the discharge. The motion was granted, and Wakelee's proof of debt was canceled and his specifications were dismissed. Wakelee's opposition being removed, Davis obtained his discharge. Wakelee accepted the order dismissing the specifications, and did not appeal therefrom because of the statements made on behalf of Davis that the judgment was a valid one, and would not be affected by a discharge in bankruptcy. The bill alleges that by reason of these proceedings 'the validity and binding force of said judgment of November 18, 1873, was affirmed, and said Davis was thereby forever estopped from denying the same; notwithstanding his discharge in bankruptcy, then petitioned for, and subsequently obtained. ' Prior to the commencement of this suit, the judgment was duly assigned to the complainant, no part thereof having been paid. There is no averment that the defendant has taken or threatens to take any proceeding prejudicial to the complainant's rights, or that the bill is filed in the aid of another action. The relief demanded is-- First, that the defendant pay the amount of the judgment, namely, $22,809, with interest, and the costs of this action; second, for such other and further relief as to the court shall seem meet. The defendant demurs on the ground that the bill does not state a cause of action in equity. In her brief the complainant requests, in case the demurrer is sustained, that she may be allowed to amend.

Anson Maltby, for complainant.

Henry A. Root and Thaddeus D. Kenneson (Joseph H. Choate, of counsel,) for defendant.

COXE J.

(after stating the facts as above.) To the opinion expressed at the argument but little need be added, as I am unable to see, after reading the

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