Steele v. Georgia Finance Inc. , 53 Ga. App. 543 ( 1936 )

Stephens, J.

1. The forthcoming bond the condition of which is the production of the property at the time and place of sale does not, before a breach of the bond, constitute “a fixed liability as evidenced by a judgment or an instrument in writing absolutely owing,” and the obligation in the bond does not constitute a debt provable in bankruptcy where the petition in bankruptcy of the obligor was filed before the date of the breach of the bond. Bankruptcy act, § 63. The debt, not being provable in bankruptcy, is not dischargeable in bankruptcy. Bankruptcy act, § 17; Collier on Bankruptcy (13th ed.), 1399, 1421; Williams v. United States Fidelity & Guaranty Co., 236 U. S. 549 (35 Sup. Ct. 289, 59 L. ed. 713), 11 Ga. App. 635 (75 S. E. 1067) ; Clemmons v. Brinn, 36 Misc. 157 (72 N. Y. Supp. 1066). 11 U. S. C. A., §§ 35, 103.

2. In a suit against the surety on a forthcoming bond, to recover damages for non-production of the property at the time and place of sale, where it does not appear from the evidence that the bond was breached before April 3, 1933, the date of the sale when the property was to be produced as required by the bond, and where it appears that the surety’s petition in bankruptcy was filed afterwards on October 31, 1932, the court did not err in finding against the defendant’s plea for a stay of the proceedings on the ground of his adjudication in bankruptcy. The superior court did not err in overruling the certiorari.

Judgment affirmed,.

Jenkins, P. J., and Sul ton, J., concur. Joe Hill Smith, for plaintiff in error. H. L. Luilrell, contra.