Summary
In Hickman v. Livingston, 109 Ga. App. 812 (137 S.E.2d 491), a claim for malicious abuse of process, this court recognized that pending bankruptcy proceedings do not automatically prevent the use of garnishment proceedings, but was careful to state that the plaintiff had made no attempt to have the judgment against him stayed.
Summary of this case from American Plan Corp. v. BeckhamOpinion
40649.
DECIDED MAY 6, 1964. REHEARING DENIED JUNE 15, 1964.
Action for damages, etc. Fulton Superior Court. Before Judge Pharr.
Philip T. Keen, for plaintiff in error.
Arnall, Golden Gregory, H. Fred Gober, contra.
Where, while an action is pending against him, a defendant files a petition seeking to be adjudged a bankrupt but does not seek to have the action stayed and permits a default judgment to be rendered against him, the plaintiff in such a case is not guilty of a malicious abuse of legal process because he seeks to collect such judgment by use of summons of garnishment.
DECIDED MAY 6, 1964 — REHEARING DENIED JUNE 15, 1964.
The plaintiff brought the present action seeking to recover damages for an alleged malicious abuse of legal process. The trial court sustained the defendant's general demurrer and error is assigned on such adverse judgment by the plaintiff. The following material facts are shown by the plaintiff's petition and the exhibits attached thereto. On February 6, 1962, the defendant here filed suit in the Civil Court of DeKalb County on an account and at the February, 1963 term of such court a default judgment against the plaintiff was rendered. On October 25, 1962, at a time when the action in the Civil Court of DeKalb County was pending, the plaintiff filed a petition in the United States District Court for the Northern District of Georgia to be adjudged a bankrupt, but no discharge has been granted. On August 6, 1963, the defendant made an affidavit of garnishment against the plaintiff in the Civil Court of Fulton County based on the judgment obtained in the Civil Court of DeKalb County and the plaintiff's employer was named as garnishee. As a result of such garnishment the plaintiff's wages were withheld from October 29, 1963, until November 27, 1963, when the defendant released the original summons of garnishment after correspondence between the plaintiff's attorney and the defendant's attorney. "22. Defendant knew that plaintiff was not responsible for the amount he claimed under said garnishment and defendant had actual notice of said fact through the United States District Court. 23. Defendant acted in bad faith and with malice for the wrongful purpose of forcing plaintiff to pay the debt after same had been scheduled in his bankruptcy petition, knowing that the plaintiff was not responsible for the debt. 24. Plaintiff alleges that defendant instituted said proceedings maliciously and, even after having knowledge that plaintiff had scheduled said indebtedness in his bankruptcy suit, continued proceedings for the purpose of extorting sums of money wrongfully and illegally from said plaintiff. 25. Said . . . [defendant] resorted to the processes of the court for the purpose of illegally extorting said sums from said plaintiff. 26. All of the said acts were a malicious abuse of legal processes and were wilfully, knowingly and maliciously done for illegal purposes and without probable cause."
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 S.E.2d 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 S.E. 1030); Crawford v. Bostwick-Goodell Co., 141 Ga. 356 ( 80 S.E. 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 S.E. 249); Duncan v. Southern Savings Bank, 59 Ga. App. 228 ( 200 S.E. 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 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 Russell, JJ., concur.
ON MOTION FOR REHEARING.
The plaintiff contends in his motion for rehearing that the exhibit attached to his petition showing that the judgment was obtained in the Civil Court of DeKalb County at the February, 1963 term was a typographical error and that such exhibit should have shown that such judgment was obtained at the February, 1962 term. Such exhibit is a copy of a garnishment affidavit allegedly filed in the Civil Court of Fulton County.
Attached as an exhibit to the motion for rehearing is a copy of the garnishment affidavit, showing the judgment as having been obtained in 1962, certified by the Clerk of the Civil Court of Fulton County.
The petition in the present case was filed in the Superior Court of Fulton County, not the Civil Court of Fulton County, and there is no contention made that the exhibit forwarded to this court as a part of the record is not a correct copy of the exhibit as it was actually filed as a part of the plaintiff's petition in the case sub judice.
However, had the judgment against the plaintiff here been obtained prior to the bankruptcy the result would have been the same since the defendant here could seek to enforce his judgment until the plaintiff here took proper action by affidavit of illegality or otherwise to prohibit the collection of such judgment. See Aiken v. Bank of Ga., 101 Ga. App. 200, 203, supra.
Motion for rehearing denied.