Block v. Fitche , 33 La. Ann. 1094 ( 1881 )

Tfie opinion of the Court was delivered by

Fenner, J.

Defendant is an adjudicated bankrupt whose bankrupt proceedings were pending, undetermined, at the time when this suit was instituted. Plaintiff, a creditor, after proving his debt in the bankruptcy, brought this suit. Defendant, without pleading the protection of his bankrupt proceedings, filed answer to the merits. Thereafter, before trial or judgment, he filed his plea that he had been adjudicated a bankrupt, that his proceedings were pending, the question of discharge undetermined, that plaintiff had proved his debt, and could not, therefore, maintain this suit.

The plea was sustained and the suit dismissed.

Plaintiff appeals and assigns, as error, that the plea was in the nature of a dilatory exception or of a peremptory exception founded on form of procedure, which should have been pleaded in limine litis, and could not be heard after issue joined by answer to,the merits.

State rules of pleading cannot be invoked to deprive a citizen of a right or privilege conferred by a law of the United States, passed in in pursuance of the Constitution, which is the paramount law of the land.

Article 5105 U. S. Revised Statutes expressly provides: “No creditor proving his debt or claim, shall be allowed to maintain any suit at law or in equity therefor against the bankrupt ” — -meaning, as established by judicial interpretation, during the pendency of the proceedings.

It has been held that the protection of this statute must be claimed, by special plea,, by the bankrupt, but the industry of counsel has discovered no authority holding that such plea may not be filed at any time before judgment, or that it is waived or renounced by answer, nor can such proposition be sustained.

The bankrupt, when he files this plea, simply claims the enforcement of a constitutional law of the United States, paramount to all State legislation. The State law can neither repeal this statute, nor limit its operation, nor impose conditions upon its enforcement.

This plea, in its nature, has no relation whatever to the question of indebtedness vel non. It can present no inconsistency with any prior answer, whether it admitted or denied the debt or pleaded the extinguishment thereof. Eor the maintenance of the plea, it is sufficient that the creditor should have proved “ his debt or claim,” and whether the bankrupt admit, or deny, or plead extinguishment of, the claim, does not affect the case. He has a privilege, which he may exercise or not, at his option; but we know of no law, principle, or authority, which deprives him of free option at any time prior to judgment in the suit.

Authorities are conflicting as to whether the relief, to which the defendant is entitled, is a dismissal of the suit, or a stay of proceedings.

As the plaintiff had proved his debt, we will adhere to the precedent in Shelly vs. Bayly & Pond, 32 An. 1171, which was followed by the District Judge, who dismissed the suit. In Fourchy vs. Bayly, 33 An., where we granted a stay, the creditor had not proved his debt.

We are asked to reserve to plaintiff the right to proceed against defendant upon obtaining leave of the bankrupt court.

No such reservation is necessary or proper in our present decree, which deprives plaintiff of no right accorded him by law.

The judgment of the court a qua, was entirely correct and requires no amendment at our hands.

The judgment is, therefore, affirmed, at appellant’s cost.