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Roy v. Abraham

Supreme Court of Alabama
Jun 28, 1923
96 So. 883 (Ala. 1923)

Opinion

3 Div. 614.

June 7, 1923. Rehearing Denied June 28, 1923.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

W. A. Gunter and C. E. O. Timmerman, both of Montgomery, for appellant.

A discharge in bankruptcy does not release prior judgment liens upon real property of the bankrupt. 3 R. C. L. "Bankruptcy," § 142; John Leslie Paper Co. v. Wheeler, 23 N.D. 477, 137 N.W. 412, 42 L.R.A. (N.S.) 292.

Gregory Co. v. Cale, 115 Minn. 508, 133 N.W. 75, 37 L.R.A. (N.S.) 156; Thomas v. Woods, 173 Fed. 585, 97 C.C.A. 535, 26 L.R.A. (N.S.) 1180, 19 Ann. Cas. 1080. And this is true, though the property has been set aside to the bankrupt as exempt in bankruptcy proceedings, especially when this is done, as here, by an ex parte proceeding after discharge. Floyd v. Johnson, 142 Ga. 833, 83 S.E. 943; F. Mayer B. S. Co. v. Ferguson, 19 N.D. 496, 126 N.W. 110; Wills v. Lbr. Co., 29 Cal.App. 97, 154 P. 613; Frey v. McGaw, 127 Md. 23, 95 A. 960, L.R.A. 1916D, 113; 196 Mass. 528, 82 N.E. 696, 14 L.R.A. (N.S.) 1025, 124 Am. St. Rep. 584, 13 Ann. Cas. 365; 32 Dec. Dig. (2d Ed.) § 433.

Stuart Mackenzie, of Montgomery, for appellee.

The action of the United States court in ascertaining and declaring the homestead exemption is final in this suit, which is nothing more than a collateral attack. Smalley v. Laugenour, 196 U.S. 93, 25 Sup. Ct. 216, 49 L.Ed. 400; 23 Cyc. 1055.


The rights of a bankrupt to exempt property are those given by the statutes of the states, and the bankrupt court is expressly vested with the jurisdiction to determine the claim of exemptions and if this complainant was notified of the proceedings and failed to contest the claim of exemptions, or failed to appeal from the judgment allowing said exemption he is precluded from questioning the validity of the allowance in another proceeding in the state court. Smalley v. Laugenour, 196 U.S. 93, 25 Sup. Ct. 216, 49 L.Ed. 400. We think that the present bill falls short of charging that the order in question was void, as, for aught appearing, the complainant had notice of the proceedings to have the exemptions set apart. It may have been instituted by an ex parte petition, and there may not therefore have been any adverse proceeding against any particular person as charged in the amended bill; yet this complainant may have been in the bankrupt court and may have been given notice of the report of the trustee setting the exemption apart and may have had an opportunity to file exceptions to the said report. Pleading should be definite, and the nonexistence of facts which go to the life of solemn judgments of courts of records should not be evaded, and mere inferences will not suffice against an appropriate demurrer. If this complainant had notice of the proceedings, he cannot now complain of the order, notwithstanding the petition was ex parte and there was no adverse contest, and, from aught appearing from the bill of complaint, he may have been given notice and failed or refused to make the proceeding "adverse."

Upon former appeal ( 207 Ala. 400, 92 So. 792), this question was not decided, as the court merely assumed or conceded that the complainant had a lien on the property, overlooking the averment that the same had been set aside as exempt, and the third ground of demurrer to the original bill. Indeed, counsel for appellant doubtless realized this defect in the bill by amending the same in making a futile attempt to charge that the order setting apart the exemption was void.

The circuit court did not err in sustaining the demurrer to the bill, and its decree is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.


Summaries of

Roy v. Abraham

Supreme Court of Alabama
Jun 28, 1923
96 So. 883 (Ala. 1923)
Case details for

Roy v. Abraham

Case Details

Full title:ROY v. ABRAHAM

Court:Supreme Court of Alabama

Date published: Jun 28, 1923

Citations

96 So. 883 (Ala. 1923)
96 So. 883

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