Bailey v. McIntyre , 43 Ala. 664 ( 1869 )

B. E. SAEEOLD, J.

The right of appeal from a final judgment of the chancery, circuit, or probate courts, to the supreme court, seems to be confined to the parties to the judgment, or decree. — Eevised Code, § 3485.

The bankrupt act of 1867, provides that the assignee of a bankrupt, if he requires it, shall be admitted to prosecute, in his own name, any action pending in the name of the debtor for the recovery of the debt, or other thing, which might or ought to pass to the assignee by the assignment. — Bankrupt Act, § 16. But no provision is any where made, in the act, for his becoming a party defendant in a State court.

The act further provides that no creditor whose debt is provable under the act, shall be allowed to prosecute to final judgment any suit at law, or in equity, therefor against the bankrupt, until the question of the debtor’s discharge shall have been determined; but that such suit shall be staid on application of the bankrupt. The suit, by leave of the court in bankruptcy, may proceed to judgment for the purpose of ascertaining the amount due.— Section 21.

As the judgment appealed from, in the name of the assignee in bankruptcy, is not against the debtor, and the creditor, if his debt is provable, could not have a judgment against him prior to the determination of the question of his discharge, it is not seen how he can be hurt by the judgment against the assignee.

The motion of the appellee is granted, and the cause is ordered to be stricken from the docket.