Anderson v. Clark , 70 Ga. 362 ( 1883 )

Jackson, Chief Justice.

1. When this case was in this court before, reported in 65 Ga., 518, it was held : ‘ Where, to a suit brought in Georgiaon a judgment rendered in Tennessee,the defendant pleaded his discharge in bankruptcy, and it appeared that he was adjudged a voluntary bankrupt pending the suit in Tennessee, but failed to plead that fact or to ask a stay of proceedings on that account, and the judgment was subsequently rendered, and he thereafter obtained his discharge, that the plea was a valid bar to a recovery; and that the Tennessee judgment did not constitute a new debt, but simply a new security for the old debt, and, of itself, had no force or effect in, Georgia.’

That decision having been, rendered in this identical case, between the same parties, the administratoi, Clark, having been made a party, in lieu of the deceased defendant, must stand. The case is res adjudieata of this case, so far as that ruling applies.

2. But the judgment then rendered, sent the case back for a new trial, and on the new trial, a different state of facts was made. The effect of the grant of the new trial, is to order the case heard de novo, unless some specific direction be given by this court in regard to it, and the new facts on the new trial may make a new case, and other principles of law may control it, when applied to the new facts. 56 Ga., 520; 15 Ib., 653.

3. Two new facts appear in the case now, which vary it from the case then ruled. First, that the adjudication of the defendant as a bankrupt and the pendency of the bankruptcy proceedings was suggested or pleaded to stay proceedings, but afterwards withdrawn; and secondly, that the defendant confessed judgment, and thus, upon a judgment confessed after the withdrawal of the plea of the adjudication of bankruptcy and the pendency of the proceedings in the bankrupt court, the suit of the plaintifl now rests. So that the question now before us is, does the confession of a judgment, after the defendant has been adjudicated a bankrupt, and after he has withdrawn a plea to stay proceedings to await the determination of his final discharge, amount to a new promise to pay the debt ? Or does it, in connection with the withdrawal of the plea of adjudication and pendency of proceedings to be discharged in bankruptcy, raise the presumption that the defendant’s debt was of such a nature as not to be provable in bankruptcy, or such as he felt bound to pay, though bankrupt, the character of the debt not appearing in the agreed statement of facts ?

In 62 Ga., 298, it was held that a mere parol promise to pay a debt, after discharge, was based on a moral obligation, and bound the bankrupt to pay it. The case before us is a promise to pay the debt, in the most solemn form known to the law. It is a promise in judicio. It is a voluntary recognition of the debt, after the adjudication of the defendant as a bankrupt, as a debt of record. It is not only in writing, but stamped upon the records of a court of record. It is stronger and more solemn, as a recognition and obligation to pay the debt, than a promise under seal, or a covenant would be. It is a recognition of the debt as valid, after the adjudication in bankruptcy, and an agreement that it shall bind, the defendant so strongly as to preclude him from making any defence to it which arose prior to the confession. It is an agreement that execution may issue upon the confession, and that all the property of defendant, which he may acquire afterwards, shall be seized and sold, if in Tennessee, and if in any other state of the American Union, shall be liable, whenever by it and on it, without other proof, judgment shall be rendered in such other state, and execution be issued thereon. It is a confession, made with full knowledge of his right to stay a forced judgment until his discharge, and with a plea to that effect, which would have stayed it, and eventually, after his discharge, if obtained, would have barred it forever, if provable in bankruptcy. This plea is withdrawn, and then this j udgment is confessed. The legal effect of this conduct of defendant is equivalent to saying, in the presence of the court, and writing it on the records thereof: “ This debt I will pay, whether I am discharged or not from it finally by a judgment of the bankrupt court. I withdraw the plea of adjudication and the pendency of my application for discharge from my debts, in this case. I except this debt from that discharge, if I obtain it, and I agree of record here, that my discharge from all other debts shall not affect my liability to pay this.”

The presumption arising on these facts is overwhelming that the defendant knew that this was a debt from which lie could not be discharged, under the bankrupt act, or that it was one so binding on his conscience as an honest and moral man that, if ever he acquired means, he would pay it.

A solemn admission in judicio is an estoppel everywhere and forever; and these facts of record amount to an admission that, for some good reason, this defendant agreed to withdraw his plea of adjudication as a bankrupt, and to confess a judgment, and not to set up the plea of bankruptcy to this debt, made by himself a debt of record.

In Steadman vs. Lee, 61 Ga., 58, it was held that, if a bankrupt, after his adjudication, and before his discharge, suffered a judgment to go against him, without a plea to stay proceedings until final discharge, such judgment was valid, and would bind his property, notwithstanding his discharge afterwards. Much more would it be valid if, after having pleaded the stay, he withdrew the plea and confessed judgment. It seems that Judge Hawkins misconceived the facts and force of the decision in Steadman vs. Lee, when this case was here before, for he says that the judgment was obtained after the discharge in bankruptcy, whereas, it was before final discharge, as in the case at bar.

So that, applying our own law to this case, the plea of the discharge in bankruptcy is not good. That the law of Tennessee, which controls, on the effect of its judgment, is fully as strong in favor of jfiaintiff in error, if not stronger, see Code of Tennessee, section 3107; 2 Lea, 729; 4 Baxter, 300; 2 Caldwell, 325. See, also, Revised Stat. U. S., 5106 1 Smith’s Leading Cases, 793.

Judgment reversed.