Pratt v. Fields

GRAIL, P. J.

—This is an appeal from an order of the superior court granting the motions of the defendants to recall and quash a writ of execution and to set aside levy of execution and discharging the judgment theretofore rendered in said ease in favor of the plaintiff and against the defendants.

After due notice a default was entered against the defendants. On the next day the defendants filed in the United States District Court their voluntary petition in bankruptcy and scheduled this action among others. The defendants did not file any pleading or motion or make any suggestion to the superior court of the pendency of the bankruptcy proceedings. Eighty days later the plaintiff obtained judgment on the default. The defendants made no motion to vacate the judgment within the six months’ period prescribed by section 473 of the Code of Civil Procedure, but they did not obtain their discharge in bankruptcy until several months later. Execution was issued after four years. Thereupon defendants moved to recall the writ of execution and to discharge and cancel the judgment, and the motion was granted.

The contention of the plaintiff is that the defendants, having failed to plead their discharge in bankruptcy and having failed to avail themselves of the provisions provided by section 11 of the Bankruptcy Act and having failed to move to set aside the default or the judgment within the time permitted by section 473 of the Code of Civil Procedure, the order must be reversed.

The authorities throughout the United States hold to the contrary.

(Boynton

v.

Ball,

121 U. S. 457, 467 [7 Sup. Ct. 981, 30 L. Ed: 985];

Jachson

v.

Shaw,

20 Cal. App. (2d) 740 [68 Pac. (2d) 310];

Craig

v.

Cameron,

27 Ga. App. 455 [108 S. E. 828];

Portwood

v.

Shafer,

33 Ga. App. 421 [126 S. E. 556];