Marlenee v. Warkentin

YORK, P. J.

This is an action to renew a judgment recovered by respondent on December 28, 1936, against appellant in the sum of $14,476. The only defense pleaded is a discharge in bankruptcy.

From a judgment decreeing that “the liability of the defendant to the plaintiff, as evidenced by the said judgment, duly made and entered on December 28, 1936, as aforesaid, is a liability for a willful and malicious injury to the property of plaintiff, and further said liability has not been discharged, in whole or in part through the operation of a discharge in bankruptcy, or otherwise, and the same now remains an existing liability of the defendant to the plaintiff in the sum of $14,552.20, this appeal has been perfected, it being urged by appellant that the trial court erred in its findings of fact numbered fifth and sixth, and in denying his offer to produce certain documents in evidence.

The court admitted in evidence the pleadings, findings and judgment in the original action, as well as a certified copy of the discharge in bankruptcy and a portion of the schedule, and found, among other things, as follows:

“Fourth: It is true that the defendant was adjudicated a bankrupt on February 13, 1937, by the District Court of the United States at Los Angeles, California, and that on September 7, 1937, he was discharged from all provable debts and claims against his estate which existed on February 13, 1937, which were duly scheduled and not excepted by law from the operation of a discharge in bankruptcy.

“Fifth: It is true that defendant filed a schedule of his liabilities with his petition for adjudication as a bankrupt,

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and it is true that his liability to plaintiff as indicated by said judgment of December 28, 1936, was included in said schedule of liabilities, but notwithstanding the plaintiff’s place of residence was well known to the defendant at the date of the filing of said schedule the same was not included therein, nor was there included therein a statement that such place of residence was unknown to the defendant. And the court further finds that said liability was not duly scheduled and that the plaintiff had no notice or actual knowledge of the proceedings in bankruptcy in time for proof and allowance of her said claim;