Opinion
34281.
DECIDED OCTOBER 24, 1952.
Action for damages; from Polk City Court — Judge Flournoy. July 7, 1952.
Marson G. Dunaway Jr., for plaintiff in error.
J. M. Grubbs Jr., contra.
The court erred in treating the allegations of the defendant's pleas as being true and proved without any evidence to that effect having been introduced, and erred in sustaining such pleas and in dismissing the action.
DECIDED OCTOBER 24, 1952.
Herschel Stegall sued Vivian Jones for damages arising out of a collision between the parties' automobiles allegedly caused by the defendant's negligence. The defendant filed a plea of res judicata and a plea of discharge in bankruptcy. The plea of res judicata alleged substantially; that on July 7, 1951, I. O. Stegall filed a petition in Polk City Court naming the defendant here as the defendant in that action; that the cause advanced in that case was based on a promissory note, in the principal amount of $300; that the defendant's automobile as described in the present petition was the security in said note, and as such was levied on and sold by the Sheriff of Polk County, the proceeds of such sale being paid to the plaintiff herein, Herschel Stegall, through I. O. Stegall; that the claim in that case was reduced to the sum of $258.48 by reason of such levy and sale; that the plaintiff herein acknowledges the receipt of this sum from the sale of the automobile; that I. O. Stegall, agent of Herschel Stegall, was the payee in said note; that the note was based on the claim for damages now advanced in the instant case by the plaintiff and reflected the complete measure of damages claimed in the instant case; that the claim advanced in the prior case of I. O. Stegall against the defendant was the same and identical claim now being advanced in the instant case; that thereafter and on September 27, 1951, in the case of I. O. Stegall vs. Vivian Jones, the defendant filed his plea for a stay on account of pending bankruptcy; that on January 24, 1952, the defendant therein filed his plea of discharge in bankruptcy, whereupon, on April 7, 1952, the court sustained the said plea and rendered judgment in favor of the defendant. The plea of discharge in bankruptcy in the instant case alleged substantially: that on September 27, 1951, the defendant filed his voluntary petition in bankruptcy in the United States district court and after being adjudged a bankrupt, he was, on December 18, 1951, granted his discharge in bankruptcy as to all debts existing at the time of the filing of the petition in bankruptcy and which had been proved; that a copy of the discharge was attached to the plea; that the plaintiff's demand in the instant case existed at the time of the filing of the petition in bankruptcy and said claim had been reduced to a provable claim under the Bankruptcy Act; that said claim was duly scheduled in the defendant's schedules as a claim against the bankrupt; that the plaintiff, as well as his agent in the matter, had notice of the bankruptcy proceedings as required by law. After hearing argument of counsel and consideration of the pleadings, the court sustained both pleas and dismissed the plaintiff's action, and he excepts.
The plea of res judicata will be construed as alleging that the plaintiff and the defendant entered into an agreement whereby the defendant was to give I. O. Stegall a note for the principal sum of $300 as full settlement of the plaintiff's claim for damages against the defendant. The court, without a hearing on the evidence, treated the defendant's allegations in said plea as being true and as being proved and sustained the plea. This was error. The defendant had the burden of proving the allegations of the plea by competent evidence before a finding in his favor on the plea was authorized. The same applies to the plea of discharge in bankruptcy. The defendant alleged in such plea that the claim in the instant case was the same claim as that represented by the note sued on by I. O. Stegall and that he had scheduled and proved the claim on the note in his bankruptcy proceedings and had been discharged therefrom. The defendant attached a copy of the discharge to the plea but the discharge did not show that claims had been proved and discharged.
The court erred in sustaining the pleas and in dismissing the action.
Judgments reversed. Sutton, C.J., and Worrill, J., concur.