Leman v. Locke

Braley, J.

It is true as the plaintiff contends that the nature *554 and character of an original debt provable in bankruptcy is not changed by merger in a judgment. Boynton v. Ball, 121 U. S. 457, 466 . Savage v. Shaw, 195 Mass. 571 . Attorney General v. American Legion of Honor, 196 Mass. 151, 158 . Brown v. Hannagan, 210 Mass. 246, 248 . And in Audubon v. Shufeldt, 181 U. S. 575 , it was held that a discharge in bankruptcy does not bar collection of arrears of alimony and allowance for support of wife and minor children accrued under a decree for divorce. This case was followed in Wetmore v. Markoe, 196 U. S. 68 , which decided that the amendatory act of 1903, 32 U. S. Sts. at Large, 798, § 5, excepting from the effect of a discharge in bankruptcy a decree for alimony due or to become due for the maintenance and support of the wife and minor children, while it did not apply to prior cases, was merely declaratory of the true meaning of § 63 of the act of 1898, 30 U. S. Sts. at Large, 562, c. 541, U. S. Comp. Sts. (1901) 3447. See In re Williams, 208 N. Y. 32, 38 . But, even if the items on which the plaintiff recovered judgment appear in the record, the original action was in contract to recover for a debt resting upon an express or implied promise at common law. The question, whether, notwithstanding the judgment, the discharge would be effective if suit had been brought on the original cause of action, is not presented by the record. See Dunbar v. Dunbar, 190 U. S. 340 . The judgment was proved in bankruptcy, where the plaintiff was heard in opposition to the bankrupt’s discharge, and the present action, which declares on the judgment in an action of contract within twenty years after it was rendered, is expressly authorized by R. L. c. 177, § 19 (see now G. L. c. 235, § 19). Linton v. Hurley, 114 Mass. 76 . We are therefore of opinion that the judge was warranted in finding in so far as the question was an issue of fact, that the judgment was not a judgment for maintenance within the meaning of the amendment, and correctly ruled that the amendment did not apply to the plaintiff’s claim, and that, the judgment having been a provable claim “and was so considered and acted upon by the plaintiff,” the action was barred by the bankrupt’s discharge. U. S. St. 1898, c. 541, § 63. See Cotting v. Hooper, Lewis & Co. Inc. 220 Mass. 273, 275 .

Judgment is to be entered for the defendant, and it is

So ordered.