
    Case 22 — Proceeding on Rule fob Failing to Pat Alimony Previously Adjudged —
    Feb. 28.
    Fite v. Fite.
    APPEAL from bracken circuit court.
    Judgment Discharging Rule and Plaintiff Appeals.
    Affirmed.
    Bankruptcy — Discharge as Bar to Enforcement of Judgment for Alimony.
    Held: A discharge in bankruptcy is a bar to the enforcement of a judgment for alimony previously rendered against the husband.
    GEORGE DONIPHAN and A. E. WILLSON, for appellants.
    'QUESTIONS DISCUSSED AND AUTHORITIES CITED.
    1. Alimony is a duty, not a debt founded on contract or judgment, and whether accrued or accruing, decreed as a lump sum, or installments, is not a claim provable in bankruptcy. Sec. 63 a, 1, b, 1898 Bankruptcy Act; Loveland’s Law & Proceedings in Bankruptcy, p. 218, see. 110; 94 Fed. Rep., 119 In re Houston; 99 Ky., 33 and 34, Tyler v. Tyler; 49 La. Ann. 1503 (22 So., 887), State v. King; In re Garrett Federal Case, No. 5252; In re Lachmeyer Federal Case, No. 7966; In re Anderson, 97 Fed. Rep.,-321; In re Shepard, 97 Fed. Rep., 187; In re Nowell, 99 Federal Rep., 931; Barclay v. Barclay 111. Sup. Ct.; In re Emil J. Smith Buffalo Referee; 21 Ky. Law Rep., 1093, Franck v. Franck.
    2. The duty to support the children was not discharged by appellee’s bankruptcy. 98 Fed. Rep., 710 (West system); .in re Hubbard.
    F. T. FOX, Attorney for appellee.
    (No brief.)
   Opinion op the court by

JUDGE GUFFY

Affirming.

At the July term, 1898, of the Bracken Circuit Court, the appellant obtained a divorce from the appellee, and was given the care and custody of their two infant children. It is further adjudged that 'the defendant pay the cost of the suit, including an attorney’s fee of $50 for plaintiff’s attorney. The following also appears in the said judgment: “It is ordered and adjudged that from this date the defendant pay to the plaintiff, as and for alimony, the sum of twenty-five dollars per month, payable on the 7th day of each month henceforth, which may be collected by execution, or by other process or orders of this court.” At the March term, 1900, of the said circuit court, the appellant, then plaintiff, moved the' court to redocket the aforesaid case of Annie O. Fite against William E. Fite; and plaintiff claimed that the defendant has failed to pay any installment of the alimony since the-day of-, 1899, and asked the court to enforce its order, and to issue a writ returnable forthwith against the defendant to show cause why he has so failed, an why he should not be punished for contempt. The plaintiff also moved the court to require the defendant to pay a monthly stipend for the support of the children awarded to her. The court proceeded to redocket the suit aforesaid, and issued the rule prayed for, returnable to the March term, 1900, of the said court. The response of the defendant showed that since February 10, 1900, he was adjudged a bankrupt by the district court of the United States for the district of Kentucky, and filed his discharge in bankruptcy, and prayed that an order be entered enjoining the plaintiff and George Doniphan from further proceeding to collect said sums of money, or from enforcing said judgment against the defendant. The discharge referred to is as follows: “It is therefore ordered by this court that William E. Fite be discharged from all debts and claims which are made provable by said acts against his estate, and which existed on the 24th day of November, A. D., 1898, on which day the petition for adjudication was filed by him, excepting such debts as are by law excepted from the operation of a discharge in bankruptcy. Witness: The Hon. Walter Evans, Judge of said District Oourt and the seal thereof, this 15th day of June, A. D., 1900. Thomas Speed, Clerk.” The reply of plaintiff traverses the fact or claim that the discharge relied on by defendant is any bar to the collection of her claim. At the October term, 1900, of the said Bracken Circuit Court, the court, after reciting the matters and things in controversy, rendered the following judgment: “Upon proof heard and argument of counsel, ■the court finds, further, that the defendant is in arrears in the payment of the installments' of alimony to October 7, 1900, in the sum of $417.41, and of that sum $117.41 was due at the time of the filing of the petition in bank rup'tcy by defendant, and $300 has since accrued; also that from and after the 7th day of October, 1900, the alimony installments, at the rate of twenty-five dollars per month, are accruing and will accrue under the hereinafter set out judgment; that alimony accrued and to accrue under the aforesaid judgment is a provable claim in bankruptcy, and the discharge of the defendant in bankruptcy operated as a discharge of all moneys due, or to become due, as and for alimony. It is therefore ordered and adjudged that the plaintiff’s motion herein be, and it is, overruled. The rules issued against the defendant are discharged. The response by the defendant, filed July 15, 1900, herein, is adjudged sufficient, and in accordance with the prayer of said response the plaintiff herein, Annie O. Fite, is' perpetually enjoined and restrained from collecting, o-r attempting to collect, from the defendant the sums aforesaid, or any other sums accruing under said judgment.” Plaintiff’s motion to vacate or modify the foregoing- judgment was overruled; hence this appeal.

The question presented for decision is whether appellee’s- discharge in bankruptcy is a bar to the prosecution or collection of the alimony theretofore adjudged to appellant. By section 1 of the bankruptcy act of July 1, 1898, it is said that “debt shall include any debt, demand, or claim provable in bankruptcy; discharge shall mean the release of a bankrupt from all of his debts which are provable in bankruptcy, except such as are excepted by this act.” By section 63 of said act, the debts which may be proved are stated thus: “Debts of the bankrupt may be proved .and allowed against his estate which are a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did not bear interest. . .” By section 17 it is provided: “A discharge in bankruptcy shall -release a bankrupt from all his provable debts, except such as are due as a tax levied by the United States, the State, county, district, or municipality in which he resides; judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the persons or property of another; 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: or were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.” The District Court of Kentucky, in Re Houston, 94 Fed. 119, had under consideration the pre. eise question involved in the case at bar. It appears from the opinion in the case, supra, that the Circuit Court of Campbell County had committed to jail the petitioner for the reason that he had failed and refused to pay a judgment against him for alimony in weekly installments of five dollars each, notwithstanding his discharge in bankruptcy. The petitioner ■ appealed to said district court to be released under a writ of habeas corpus. The district court, among other things, said: “Among these benefits was that o>f claiming a discharge from all liabilities of every character which, by the term's of the bank rupt law, were provable debts against his estate, with certain exception specified in the act.” The court then refers to section 1 of said act, heretofore quoted, and then said: “Whether wisely or unwisely, Congress did not in fact, in section 63, distinguish between judgments for alimony and other judgments, when including them in the list of provable debts; nor did it, in section 17, include judgments of that class among those not to be affected by a discharge in bankruptcy. The bankrupt court in this case had so decided on the motion for a stay of proceedings, and had directly passed upon the question in holding that a stay should be ordered. While, in making the order for a stay of proceedings, the court only looked at the question from a standpoint of the past-due installments of alimony, it is strongly inclined to the opinion that the peculiar form of judgment by which .alimony is usually allowed may be properly classed among certain of the unliquidated demands of the bankrupt, to be liquidated and made certain in amount pursuant to section 68 of the act, and, if the State law gave- it priority, such judgments could be allowed a preference of payment out •of the' -assets. And it should not be overlooked that the Court of Appeals of Kentucky in the case of Tyler v. Tyler, 99 Ky., at page 34, 34 S. W., 899, in speaking of a judgment against the husband for alimony, said that it ‘makes him an ordinary debtor to the wife for a fixed sum of money, that his estate is liable for in the same manner that it would be for a debt due upon any contract.’ But whether the judgment be a fixed liability or a contingent one is immaterial in this case, because all these questions must be settled and disposed of in the bankruptcy court alone', -and, while the judgment of the court t theireo-n may be erroneous, it is not void, nor, so long as it remains unreversed, is it to be disregarded by the State court. . . .” It will be seen frdm the judgment of the Bracken Circuit Court that the court heard proof, which, however, is not certified to us-; and it must be presumed that, so far as testimony affects the judgment, the same was amply sufficient to authorize the judgment rendered. It may be conceded that some State courts have reached a different conclusion. But it is also true that the law in some of the States in regard to alimony differs materially from the law of this State as declared in Tyler v. Tyler, supra. It may be in order to remark, further, that the honorable judge of the District Court of Kentucky was a member of Congress when the bankrupt law under consideration was enacted, and taking that, together with the well-known legal ability of the judge, into consideration, his opinion in respect to said law is entitled to very great consideration. This court has nothing to do with the question of sentiment that may be supposed to'enter into tbe question under consideration, nor can the moral duty, if such there be, resting upon the appellee to pay the alimony in question, be considered in determining the law governing the case. This court must respect and obey the law as it exists. Judgment affirmed.  