Garner v. Hartsfield Loan & Savings Co.

174 S.E. 647, 49 Ga. App. 199, 1934 Ga. App. LEXIS 328

• Court: Court of Appeals of Georgia
• Decided: May 23, 1934
• Docket: 23383
• Status: Published

Opinion

Beoyles, C. J.

1. Where a discharge in bankruptcy is granted pending a suit commenced in a State court, and the State court, subsequently to the discharge, renders a judgment against the bankrupt, and execution thereon is levied on certain property of the bankrupt, the property, although acquired after his discha/i-ge in ba/nkruptey, is subject to the execution, where the defendant (the bankrupt) in the suit in the State court failed to file a plea setting up his discharge in bankruptcy. In order for the bankrupt “to avail himself of his discharge, he should have -pleaded it in the pending suit. Failing to plead it, the subsequent judgment is not affected by such discharge, and is an enforceable lien against any property of the defendant. Finney v. Mayer, 61 Ga. 500.” Crawford v. Bostwick-Goodell Co., 141 Ga. 356 (80 S. E. 1005). The cases cited by counsel for the plaintiff in error are distinguishable by their particular facts from the Crawford case and the instant case.

Decided May 23, 1934. Robert L. Russell, Pemberton Cooley, Alexander Stephens, for plaintiff in error. Robert T. Efurd, Mose S. Hayes, contra.

2. The controlling facts of the Crawford ease, supra, and of this case are identical, and, under the ruling in' the Crawford case, the court in the instant case properly directed a verdict against the affidavit of illegality filed by the bankrupt.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.