Jones v. Barnes

66 So. 212, 107 Miss. 800

• Court: Mississippi Supreme Court
• Decided: October 15, 1914
• Status: Published

Opinions

Reed, J.,

delivered the opinion of the court.

ON PLEA IN BAR.

A plea in bar as to appellant S. A. Jones was filed in this case. It is as follows:

“Now comes the appellee, H. A. Barnes, by his attorneys, and shows to the court that after the trial of this cause in the lower court, to wit, on February 29, 1912, the appellant S. A. Jones filed a petition in bankruptcy, whereby he voluntarily, in accordance with the acts of Congress in that behalf made and provided, assigned to a trustee in bankruptcy all his property other than that exempt from execution at law, and there was included in said assignment, by operation of law, all the interest of said bankrupt in each and every of the several notes sued on in this cause, and on which the appellant, S. A. Jones, is seeking a judgment against this appellee, and the said S. A. Jones now has no interest in said notes, and has not had any interest therein since the filing of said petition in bankruptcy, and the said S. A. Jones now has no interest in this cause which will entitle him to prosecute this appeal; and this the appellee is ready to verify. Wherefore the appellee prays that this cause, as against the said S. A. Jones, may be dismissed.”

Appellant S. A. Jones filed a replication to the plea in bar, in which he says that “all and singular the aver-ments of said plea are untrue.”

An agreed statement of facts is on file, and for our consideration upon the hearing of the plea. It reads:

“ (1) After the rendition of the final decree appealed from in this case, enjoining the appellants from instituting or prosecuting suits on the promissory notes mentioned in the pleadings, the said S. A. Jones was adjudged a bankrupt by the United States District Court, Southern District of Mississippi, Southern Division, at Biloxi.

“(2) That the said S. A. Jones did not schedule the notes above mentioned, or either of them, as constituting a part of his assets, and in fact his schedule showed no assets above those which were exempt. At the same time the schedule of his debts showed that he owed two thous- and, six hundred, twenty-six dollars and twenty-nino cents.

“(3) It appearing at the first meeting of the creditors that there were no assets, the estate was ordered closed. No trustee was appointed under the circumstances, as none appeared to be needed.

“(4) Afterwards, and before the prosecution of the appeal in this case, the said S. A. Jones was discharged as a bankrupt, and after receiving his discharge it was that he, together with his coappellant, prosecuted the appeal in this case. ’ ’

As to the present hearing on the plea in bar, this case is controlled by the decision in the case of Juden v. Nebham, 103 Miss. 84, 60 So. 45. Therein it was decided that property belonging to the estate of a bankrupt, though' not scheduled, will pass to the trustee upon adjudication of bankruptcy, and does not revest in the bankrupt by his discharge. The bankrupt in that case had not scheduled the note sued upon among his assets, and no trustee was appointed, because no assets were shown. He was finally discharged, and we held that he was divested of his ownership of the note, and consequently deprived of his right to recover. When appellant S. A. Jones was adjudged a bankrupt, all of his title and ownership in the notes involved in this action passed out of him, and was not revested in him upon his discharge. When his ownership in the notes ended, his right to proceed in a case involving the notes was also at an end.

The plea m bar is sustaimed.