In re Bybee

DE HAVEN, District Judge. This is a motion to vacate the order heretofore made in this proceeding, staying execution of a judgment obtained against the bankrupt in a justice’s court of the city and county of San Francisco, state of California, on December 26, 1902. The motion is based upon the alleged facts that prior to the enactment of the present bankruptcy act the bankrupt commenced in the superior court of the city and county of San Francisco, state of California, proceedings for his discharge, under the insolvency law of the state, from the indebtedness upon which the judgment in the justice’s court referred to was founded, and that his application for such discharge was denied. It is argued that the right of the bankrupt to be discharged from such indebtedness has thus been finally determined against him, and therefore the creditor _ should be allowed to enforce the judgment obtained by him in the justice’s court. The particular facts which were in issue and determined in the insolvency proceeding are not shown. Section 17 of the bankruptcy act of July 1, 1898 (chapter 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]), provides that a discharge in bankruptcy shall release the bankrupt from all of his provable debts, with certain exceptions, and it does not appear from the affidavit filed in support of the present motion that the judgment in the insolvency proceeding in the state court was based upon any fact falling within these exceptions. That judgment may, under the law of the state, have been given for reasons and upon grounds other than the existence of facts which would prevent a release under the bankruptcy act, and, if so, would not affect the decree of discharge granted in this proceeding. Upon this state of the record, the motion to vacate the order staying the proceedings upon the judgment in the justice’s court must be denied. Dean v. Justices of the Municipal Court, 2 Am. Bankr. R. 163, 53 Fed. 893.