Brazil v. Azevedo

LENNON, P. J.

This action was brought against Manuel Azevedo, John S. Marshall, J. Rodgers and Melrose Central Creamery, the latter being a copartnership consisting of the three individual defendants named, and was for the recovery of the value of merchandise sold by the plaintiff to said copartnership, and also for the recovery of various amounts due other creditors and which had been assigned to the plaintiff.

After trial, judgment went in favor of the plaintiff and against defendant Manuel Azevedo, it having appeared by the answer of Azevedo’s codefendants—and which was admitted to be true by the plaintiff—that in bankruptcy proceedings they had severally been discharged from the indebtedness upon which the plaintiff’s claim was founded.

[366]

The appeal is by Azevedo from the judgment; and the first point made by him is that his demurrer to the amended complaint should have been sustained. The demurrer was upon the ground of lack of facts, and particularly upon the ground that the trial court had no jurisdiction to proceed with the trial of the action, because it was shown by the averments of the amended complaint that bankruptcy proceedings were pending in the United States district court against the copartnership of which appellant and his other codefendants were members and against his said copartners.

The pendency of these proceedings in bankruptcy did not deprive the superior court of jurisdiction of this cause. Section 11a of the United States Bankruptcy Act of 1898 provides that: “A suit which is founded upon a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition'against him, shall be stayed until after an adjudication or the dismissal of the petition; if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined.” It is apparent from this provision of the act that while a suit of the character mentioned is stayed until the adjudication or dismissal of the petition, and may be further stayed by the United States district court as therein provided, a state court in which such a suit is pending is not deprived of jurisdiction. Speaking of the effect of this section of the Bankruptcy Act, it is said in Collier on Bankruptcy (6th ed.), at page 145: “But the state court does not lose jurisdiction (citing