
    Parks v. Goodwin & Hand.
    Where, between the argument of a cause in error and the decision of the court affirming the judgment, the debtor has-been discharged in bankruptcy, on motion the court will grant a perpetual stay of execution.
    Motion for a perpetual stay of execution. Goodwin & Hand recovered a judgment in tbe circuit court of Oakland against Parks, wbo sued out a writ of error from this court, which affirmed the judgment of the circuit court. Between the argument of the cause and the decision of the court affirming the judgment, Parks was discharged in bankruptcy, and now moved for a perpetual stay of execution on the judgment.
    
      
      Paries, in person.
    
      Knight, contra.
   By the court,

Whipple, J.

If a party is sued uppn a claim or demand, from winch he has been discharged by a decree of bankruptcy, he must avail himself of the discharge by an appropriate jilea: if he fails to do this he may be made liable, notwithstanding his discharge. The mode in which a jiarty may avail himself of such a defence, is fully jiointed out in the bankrupt law. The act, however, makes no provision in respect to a case situated as this is. The party had not been discharged when called upon to jilead to the assignment of errors. The case had been argued upon the issue made uji between the parties, and submitted to the court for decision. After such agreement and submission it was too late to interpose a jilea: nothing remained ■ to be. done but to pronounce judgment upon the issue between the jiarties. But when the judgment of this court was pronounced, he had been discharged from the judgment rendered against him by the circuit court: that judgment had been Jiaid and discharged by operation pf.law/ The defendant in the court below having been thus discharged, it would seem proper that some' mode ought to be' devised by tvbich effect should be given to his discharge. Had he been present when the ojiinion of this court was announced and entry of affirmance directed, and suggested his discharge in bankruptcy, this court would either have suspended its judgment, or, having directed the judgment of the court below to be affirmed, would at the same time have ‘given the party’'the rights seciu-ed to him by his discharge, and directed a stay 'of.proceedings. Situated as this cause was when the decree in bankruptcy ivas granted, it woidd seem to me the course pursued was the approjiriate one. The cause having been argued and submitted, it was proper for the court to give judgment, reserving to the bankrupt the right of availing himself of the benefit of his discharge when aii attempt should be made to enforce the jiayment of the judgment by execution. It is very true that thb judgment in this case was a debt created subsequent to the discharge of the bankrupt; but the debt was founded upon a judgment from which the defendant in the court be-’ low had been discharged: the judgment had, in contemplation of law,' been paid and satisfied. Suppose, after the cause had been argued and submitted, the plaintiff in error had paid and satisfied the judgment below, and obtained a discharge from the same, this court would .not hesitate to direct a perpetual stay of execution, although the judgment below was affirmed; and yet, the debt created by the judgment rendered in this court had not in fact been paid, but the judgment in thq court below, upon which the judgment of this court is based. This is but the exercise of an equitable power over its own judgments, which comts of law possess. The case of Bostwick v. Dodge, 2 Doug. Mich, Rep. 331, decided by this court in 1846, is an authority to show tha| this power may be exercised in a proper case. Dodge had obtained a, judgment against Bostwick in the circuit court: Bostwick removed the ease to the supreme court by writ of error. Iiis counsel not having received advices from his client, proceeded to argue the cause in the supreme court upon the issue made in that court. The judgment below was affirmed, when Bostwick applied for an order to stay the execution, upon the ground that he had been discharged hi bankruptcy after the sueing out of the writ of error, and before errors were, assigned, apd the case argued, and that he did not think it necessary to take any further stepis in the case, or advise further with his counsel.

’ We think if the court could rightfully stay the process in that case, it may in the case before us.

Motion granted.  