DocketNumber: No. 30975.
Citation Numbers: 138 So. 101, 173 La. 558
Judges: O'NIELL, C.J.
Filed Date: 11/3/1931
Status: Precedential
Modified Date: 1/12/2023
This suit is founded upon a judgment for $13,643.03, with interest at 8 per cent. per annum from its date, rendered against the defendant by a state court in El Paso, Tex., on the 19th of June, 1916. The present suit was filed on the 3d of March, 1927; that is, more than ten years after the judgment was rendered by the Texas court. The defendant being a nonresident, the plaintiff obtained a writ of attachment, under which the sheriff seized a tract of land containing about 442 acres in Sabine parish and six lots in the town of Zwolle, in that parish. The defendant filed an exception of no cause or right of action, founded upon article
The plaintiffs have moved to dismiss the defendant's appeal, on the ground that, on the 6th of August, 1930, he filed a voluntary petition in bankruptcy, in the United States District Court for the Western District of Texas, El Paso Division, and, on his schedule of indebtedness, annexed to his petition, listed the judgment for $13,643.03, on which the present suit is founded, and that on the 7th of August, 1930, he was adjudged a bankrupt, and on the 7th of November, 1930, was granted a discharge by a decree of the said United States District Court. Certified copies of the petition filed and decrees rendered in the bankruptcy proceeding are annexed to the motion to dismiss the appeal.
The motion to dismiss is not well founded. The judgment appealed from was rendered on the 29th of September, 1930; that is, nearly two months after the defendant was adjudged a bankrupt. He had the right, but was not compelled, to invoke the bankruptcy proceedings for the purpose of staying further proceeding in this suit in the state court. But the plaintiffs have no interest in insisting — and hence no right to insist — that the *Page 561 defendant shall claim a discharge from the debt on which the plaintiffs' suit is founded, unless they desire to abandon the suit. If they had an interest in bringing the bankruptcy proceedings to the attention of the state court, in this case, they should have brought it in the district court; because a plea which might have been but was not made in the trial court is not allowed in the appellate court if it requires the introduction of evidence to sustain it.
The position taken by the defendant in this case, as we understand, is that the debt which is evidenced by the judgment sued on was a valid obligation in Texas, when he filed his petition in bankruptcy, notwithstanding the judgment representing the debt was rendered invalid in Louisiana, by article
It was decided in Boynton v. Ball,
The appellees in this case cite Steib v. Kaiser, 23 La. Ann. 337, where it was held that an insolvent debtor who had surrendered his property to his creditors could not afterwards sue to annul a sale made of the property by the syndic of the insolvent estate. That decision is not at all appropriate here, because it is not alleged, and does not appear, that the defendant in this suit included the property attached in this suit in his list of assets, annexed to his petition in bankruptcy. It may well be assumed that he did not include this property in the list of assets filed with his petition in bankruptcy, because he had transferred the property to his wife more than fifteen years before he filed his petition in bankruptcy.
The appellees cite also Waldauer v. Harris,
*Page 563The motion to dismiss the appeal is overruled.