James v. Hudson

Court of Appeals of Georgia

James v. Hudson

139 S.E. 578, 37 Ga. App. 245, 1927 Ga. App. LEXIS 610

CourtCourt of Appeals of Georgia

DecidedSeptember 30, 1927

Docket17807

StatusPublished

This text of 139 S.E. 578 (James v. Hudson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James v. Hudson, 139 S.E. 578, 37 Ga. App. 245, 1927 Ga. App. LEXIS 610 (Ga. Ct. App. 1927).

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Opinion

Stephens, J.

1. Where a proof of debt is filed by a creditor in bankruptcy which follows form number 32 prescribed for proof of a secured debt, which recites that the debt was secured by described property not sufficient in value to satisfy the debt, and which further recites that in a suit to recover on the debt the creditor obtained a general judgment against the debtor in a named court on a.certain date, which was more than four months prior to the date on which the debtor .’was adjudicated [246]*246a bankrupt, that the amount of the judgment constitutes a lien upon all the property of the debtor, that the execution that issued upon the judgment has been levied upon certain described land of the bankrupt, and that this land is subject to the lien of the execution, the proof of debt preserves the creditor’s judgment lien upon the described land of the bankrupt. If the filing of a proof of a secured debt by a creditor could under any circumstances amount to a waiver of the lien, the proof - of debt here filed, preserving the lien, does not amount to a waiver by the creditor of his judgment lien upon the described land.

Decided September 30, 1927. IF. A. James, L. 8. James, G. M. James, for plaintiff. Aslor Merritt, for defendant.

2. The creditor not having waived his lien by filing a proof of debt in the bankruptcy court, the debtor’s discharge in bankruptcy will not operate to discharge the lien of the judgment. McBride v. Gibbs, 148 Ga. 380 (96 S. E. 1004); McCall v. Herring, 116 Ga. 235 (2) (42 S. E. 468); 7 C. J. 284, 337, 410, 412.

3. Where the land was levied upon under the execution, and the debtor filed an affidavit of illegality to the levy, upon the sole ground that the debt represented by the 'judgment was discharged by the debtor’s discharge in bankruptcy, and where upon the trial it appeared that the land levied on was not administered in the bankrupt court, the judgment sustaining the affidavit of illegality and dismissing the levy was error. Judgment reversed.

Jenkins, P. J., and Bell, J., concur.

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Stephens, J.

1. Where a proof of debt is filed by a creditor in bankruptcy which follows form number 32 prescribed for proof of a secured debt, which recites that the debt was secured by described property not sufficient in value to satisfy the debt, and which further recites that in a suit to recover on the debt the creditor obtained a general judgment against the debtor in a named court on a.certain date, which was more than four months prior to the date on which the debtor .’was adjudicated [246]*246a bankrupt, that the amount of the judgment constitutes a lien upon all the property of the debtor, that the execution that issued upon the judgment has been levied upon certain described land of the bankrupt, and that this land is subject to the lien of the execution, the proof of debt preserves the creditor’s judgment lien upon the described land of the bankrupt. If the filing of a proof of a secured debt by a creditor could under any circumstances amount to a waiver of the lien, the proof - of debt here filed, preserving the lien, does not amount to a waiver by the creditor of his judgment lien upon the described land.

Decided September 30, 1927. IF. A. James, L. 8. James, G. M. James, for plaintiff. Aslor Merritt, for defendant.

2. The creditor not having waived his lien by filing a proof of debt in the bankruptcy court, the debtor’s discharge in bankruptcy will not operate to discharge the lien of the judgment. McBride v. Gibbs, 148 Ga. 380 (96 S. E. 1004); McCall v. Herring, 116 Ga. 235 (2) (42 S. E. 468); 7 C. J. 284, 337, 410, 412.

3. Where the land was levied upon under the execution, and the debtor filed an affidavit of illegality to the levy, upon the sole ground that the debt represented by the 'judgment was discharged by the debtor’s discharge in bankruptcy, and where upon the trial it appeared that the land levied on was not administered in the bankrupt court, the judgment sustaining the affidavit of illegality and dismissing the levy was error. Judgment reversed.

Jenkins, P. J., and Bell, J., concur.

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Bluebook (online)

139 S.E. 578, 37 Ga. App. 245, 1927 Ga. App. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-hudson-gactapp-1927.

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