Brown v. Tropp

FINCH, P. J.

This is an appeal by the defendant from an order denying his motion to recall an execution issued on the judgment herein and to stay the execution of the judgment perpetually, on the ground that the judgment “was discharged by the defendant being adjudicated •bankrupt on the 10th day of July, 1926,” and “discharged in bankruptcy on the 5th day of November, 1926, and . . .

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that the claim upon which the judgment was obtained was scheduled as a liability in said bankruptcy.”

It appears that the judgment, which was for the amount of a promissory note and interest thereon, was entered December 10, 1924. In his affidavit in support of the motion the defendant states “that he filed his schedules in said bankruptcy and in the said schedules was included the name of the plaintiff, . . . Theodore Brown; that the address of the said Theodore Brown at the time of filing said schedules was unknown to the affiant; that this affiant exercised every means in his possession in the city of San Francisco to determine the address of said Theodore Brown; that this affiant believed that one Carroll Allen, attorney in the city of Los Angeles, was acquainted with said Theodore Brown and said Theodore Brown’s address, being unknown to the affiant, his address was scheduled in care of said Carroll Allen, of the city of Los Angeles, State of California.”

The affidavits on behalf of the plaintiff are amply sufficient to warrant the inference that, at the time the schedule was filed, the defendant knew that the plaintiff was residing in Los Angeles and his particular street address therein; that the plaintiff had no notice or knowledge of the bankruptcy proceedings prior to June 20, 1927; and that he was not formally notified of said proceedings or notified to file his claim therein until July 9, 1927; and it must be presumed in support of the order that the court found the facts accordingly. The time for making proof of claims expired July 10, 1927.

Section 7 of the Bankruptcy Act provides that a bankrupt must set forth in his schedule “a list of his creditors, showing their residences, if known; if unknown, that fact to be stated.” Section 17 provides: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as . . . have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.”