Gilbert v. Shouse , 45 Ga. App. 645 ( 1932 )

Broyles, O. J.

1. Under the bankruptcy act of July 1, 1898, e. 541, § 14b, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), providing that the judge shall hear the application for discharge and any proofs and pleas in opposition thereto, and discharge the bankrupt unless he has been granted a discharge in voluntary proceedings within six years, the six years are measured backward from the date of the filing of the application for discharge. In re Dunphy, 206 Fed. 680; In re Ziskin, 40 Fed. (2d) 429. Under this ruling and the facts of the instant case, the bankrupt did not file his application for a second discharge within six years of the date of his previous discharge.

2. Gilbert sued Shouse in the municipal court of Macon for an alleged 'indebtedness. Shouse pleaded his adjudication in bankruptcy, and prayed for a stay of the suit until the question of his discharge in bankruptcy should be finally determined in the Federal court. It appears that Shouse did not schedule Gilbert’s debt in his petition for adjudication in bankruptcy, but he did plead that Gilbert had “actual notice and knowledge of said bankruptcy proceeding.” No demurrer to that plea was interposed. In such circumstances it was incumbent on Shouse to show that Gilbert had notice or knowledge of the bankruptcy proceeding in time for proof and allowance of his claim. Otwell v. Thompson, 39 Ga. App. 706 (148 S. E. 302). On the trial the evidence was in sharp conflict on that question of fact, and raised an issue which should have been submitted to the jury. It follows that the trial judge erred in determining that question in favor of Gilbert, and in directing a verdict for him. The judge of the superior court properly sustained the certiorari sued out by Shouse, and remanded the ease to the municipal court, with an order that the suit be stayed until the question of Shouse’s discharge be determined by the Federal court. Brady v. Shouse, next ante.

Decided August 31, 1932. Rehearing denied October 1, 1932. John J. McCreary, Victor Davidson, for plaintiff in error. Edward F. Goodrum, contra.

Judgment affirmed.

Luke and Hooper, JJ., concur.