White v. Thompson

119 F. 868, 56 C.C.A. 398, 1903 U.S. App. LEXIS 4809

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 20, 1903
• Docket: No. 1,165
• Status: Published

Opinion

PER CURIAM.

The injunction issued by the referee restraining proceedings in the probate court of Jefferson county in the disposition of property therein duly levied upon prior to the adjudication in bankruptcy was unwarranted. For the last authoritatively adjudicated case on the subject, see Metcalf Bros. & Co. v. Barker (decided in Sup. Ct. U. S., Dec. 1, 1902) 23 Sup. Ct. 67, 47 L. Ed.-. However, as the property under execution and levy in the probate court of Jefferson county was released and brought into the bankruptcy, it would seem that therefrom, except as against the bankrupt’s creditors whose debts are not dischargeable in bankruptcy, the bankrupt would be entitled to the exemptions allowed by the laws of the state of Alabama. As the case shows that the bankrupt has been discharged from all. debts except such as are by law excepted from the operation of a discharge in bankruptcy, we may well dispose of this petition for review by dissolving the injunction restraining the said J. L. Thompson and his coheirs from further proceeding in the probate court of Jefferson county, Ala., to enforce their claims on the judgment therein rendered reversing the judgment of the bankruptcy court, which denies the exemptions, and remanding the case, with directions to enter a judgment allowing the exemptions as set aside by the trustee as against all creditors whose debts are discharged by the bankruptcy. This will leave the question of the bankrupt’s right of exemption as against the' judgment in favor of Thompson et al. to be decided in the probate court of Jefferson county, Ala., where it properly belongs; and it is so ordered. The costs of this court to be paid by the petitioner.