Opinion
No. 4369
Decided February 6, 1950.
Proceeding in aid of execution — Enforcement of judgment on note — Evidence aliunde record — Inadmissible to show debtor's obligation excepted from discharge in bankruptcy.
In a proceeding in aid of execution to enforce a judgment taken on a promissory note, where the record is silent as to the facts and circumstances under which the indebtedness was created and a defense of discharge in bankruptcy is interposed, evidence outside the record is inadmissible to show that the judgment debtor's obligation is one that is excepted from the operation of a discharge by the provisions of Section 17, Clause 4, of the Bankruptcy Act of 1938.
APPEAL: Court of Appeals for Franklin county.
Mr. O. C. Ingalls and Mr. Gene A. Jones, for appellant.
Mr. C. H. Benbow and Mr. Henry A. Williams, for appellee.
This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, dismissing plaintiff's motion for proceedings in aid of execution and sustaining the motion of the defendant to dismiss such proceedings.
The motion of defendant to dismiss was based on the fact that the judgment sought to be enforced was taken on a promissory note and was barred by the defendant's discharge in bankruptcy. The plaintiff sought to prove aliunde that the note on which the judgment was taken was given for money obtained by the defendant from the plaintiff's assignor by false and fraudulent representation. The trial court held that such evidence was inadmissible. The only error assigned is directed to that ruling.
The question presented is whether, in proceedings to enforce a judgment taken on a promissory note, the record being silent as to the facts and circumstances under which the indebtedness was created, and a defense of discharge in bankruptcy is interposed in the proceedings to enforce the judgment, evidence outside the record is admissible to show that the judgment debtor's obligation is one that is excepted from the operation of a discharge by the provisions of Section 17, Clause 4, of the Bankruptcy Act of 1938.
The plaintiff contends that such evidence is admissible and cites in support of this proposition Howland v. Carson, 28 Ohio St. 625, which holds that "the court will look back of the judgment, to the root and origin of the cause of action on which it is founded, in order to determine whether the discharge is a bar to the collection of such judgment," and also Fidelity Casualty Co. of New York v. Golombosky, 133 Conn. 317, 50 A.2d 817.
The defendant relies on Morrow v. Pfleiderer, 4 Ohio App. 283, which holds that where a judgment is taken on a note the judgment creditor cannot "explain the record by proof aliunde that the note was given for property obtained by the judgment debtor from such creditor by false and fraudulent representations," for the purpose of determining whether the claim is within one of the exceptions to the bar of a discharge in bankruptcy, and Bannon, Trustee, v. Knauss, 57 Ohio App. 288, 13 N.E.2d 733, which holds that such evidence is admissible "only where the record of the case in which the judgment was obtained is ambiguous or does not disclose the nature of the cause of action on which the judgment was founded."
The defendant cites Goodrich v. Eck, 25 Ohio Law Abs., 548, which holds that in a proceeding in aid of execution the court "has no right to go into the original case further than to examine the pleadings, files and record of the evidence" therein. See Collier on Bankruptcy (2 Ed.), Section 415, and 7 Remington on Bankruptcy, 783.
The well reasoned and exhaustive opinion of Judge Randall is attached to the transcript. The trial judge very ably discussed all the legal questions raised and differentiated the various cases cited. In Howland v. Carson, supra, cited by the plaintiff, the root and origin of the judgment was disclosed by the record and it was unnecessary for the court in that case to determine the nature of the transaction on which the judgment was taken.
In Bannon, Trustee, v. Knauss, supra, the court, in commenting on Howland v. Carson, supra, stated:
"The opinion in the case of Howland v. Carson, 28 Ohio St. 625, is not in our judgment authority for the proposition that evidence outside the record of the case in which the judgment sought to be enforced or avoided was obtained can be introduced to show the nature of the cause of action on which such judgment is based where the record of the case discloses that fact."
Again, on page 291, the court stated:
"We are therefore of the opinion that this case is authority only for the proposition that under the facts disclosed by the answer the court would look back of the record of the judgment to the record of the case to determine the nature of the cause of action on which the judgment was based."
In 8 Corpus Juris Secundum, 1591, the rule is stated as follows:
"Where the claim or demand against which a discharge in bankruptcy is asserted is in the form of a judgment and the issue involved is whether such judgment comes within a class excepted from the operation of the discharge, the entire record of the action in which such judgment was recovered is admissible and may be considered in the determination of the question, especially if the nature of the cause in which the judgment was obtained is not apparent from the judgment itself. Beyond such record the court may not go, evidence outside the record not being admissible, certainly not to contradict the record. This rule confining the evidence to the record is applicable where fraud in the incurring of the indebtedness is asserted to save the judgment from the discharge."
This court very recently had before it a similar question in Pass v. Webster, 85 Ohio App. 403, 83 N.E.2d 116, in which it was held that in a proceeding to revive a judgment the court cannot go outside the pleadings to determine whether the claim fell in a class of one of the exceptions to the bar of the discharge in bankruptcy.
In the instant case, the judgment, being a provable debt, was barred by the defendant's discharge in bankruptcy. The trial court properly ruled that the evidence sought to be admitted was inadmissible and no error was committed in dismissing the proceedings.
Judgment affirmed.
MILLER, P. J., and HORNBECK, J., concur.