Hickman v. Livingston

Nichols, Presiding Judge. Under the allegations of the plaintiff’s petition the defendant first filed suit, the plaintiff then filed a bankruptcy petition, and thereafter the defendant obtained a judgment in its suit and sought to collect judgment by a garnishment proceeding. The petition alleges that the defendant had notice of the bankruptcy proceedings but nowhere is it alleged that the defendant sought to have the proceedings on the defendant’s action against the plaintiff stayed, and it is alleged that such judgment against the plaintiff was a default judgment. In Aiken v. Bank of Ga., 101 Ga. App. 200 (1) (113 SE2d 405), it was held: “A discharge in bankruptcy in nowise extinguishes a debt; it merely makes collection of it unenforceable when the debtor desires to take advantage thereof; being a personal defense it may be insisted on or waived at the election of the bankrupt.” In such case it was pointed out: “The discharge in bankruptcy is not an automatic device for obliterating the debt, but it must be used in a proper manner by the debtor for his protection. A State court cannot take judicial notice of . a discharge in bankruptcy. Boynton v. Bell, 121 U. S. 457 (7 SC 981, 30 LE 985); Woodward v. McDonald, 116 Ga. 748 (42 SE 1030); Crawford v. Bostwick-Goodell Co., 141 Ga. 356 (80 SE 1005).” The action pending in the State court is not automatically stayed as a result of the filing of the petition seeking to be declared a bankrupt but upon petition in the State court such action will be stayed if based upon a claim upon which a discharge would operate as a release. See Shabaz v. Henn, 48 Ga App. 441, 442 (173 SE 249); Duncan v. Southern Savings Bank, 59 Ga. App. 228 (200 SE 561), and cases cited. No attempt has been made by the plaintiff in the present case to have the judgment obtained against him stayed, and the defendant was not [815] guilty of a malicious abuse of legal process in attempting to collect such judgment by use of summons of garnishment in such circumstances. The trial court did not err in sustaining the defendant’s general demurrer to the plaintiff’s petition. Judgment affirmed. Hall and Bussell, JJ., concur.