Bevis v. Gay

103 So. 555, 212 Ala. 525, 1925 Ala. LEXIS 79

• Court: Supreme Court of Alabama
• Decided: March 26, 1925
• Docket: 7 Div. 554.
• Status: Published

Opinion

ANDERSON, C. J.

The decided weight of the authority is to the effect that, after a bankrupt has made out a prima facie defense to a suit based upon an obligation existing at the time of filling out the petition in bankruptcy by the introduction in evidence of the order of discharge in bankruptcy which is presumed to cover all his debts, the burden is then, not upon the defendant, but is cast upon the plaintiff of showing that such discharge is not operative as to his claim. Smith v. Hill, 232 Mass. 188, 122 N. E. 310, 2 A. L. R. 1667, and note, page 1672. This being the rule, the defendant’s special plea 1 did not have to- aver that the plaintiff had notice of the bankruptcy proceedings or that the claim in question was listed, as this was matter to be set up by way of replication. B. F. Roden Co. v. Leslie, 169 Ala. 579, 53 So. 815; Chewning v. Knight, 16 Ala. App. 357, 77 So. 969.

The trial court erred in sustaining the demurrer upon the grounds as interposed. The plea should have set up the, court in which the defendant obtained his discharge in bankruptcy, but no ground of demurrer tested this point, and this omission did not justify sustaining the demurrer on grounds not pertinent to this defect. Section 9479, Code of 1923.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

SAYRE, GARDNER, and MILLER, JJ., concur.