
    Herman v. Ware Bros.
    (Division B.
    Jan. 20, 1930.)
    [125 So. 727.
    No. 28350.]
    Gardner, Odom & Gardner, of Greenwood, for appellant. ,
    
      Pollard & Hamner, of Greenwood, for appellees.
   Ethridge, P. J.,

delivered the opinion of the court.

The appellant, Robert Herman, filed suit against Ware Brothers, appellee, a partnership, upon a promissory ■ note for two thousand eight hundred ninety-five dollars and twenty-five cents. Ware Brothers went into bankruptcy, and, at the return term of the court where the suit was filed, a motion was filed by them to stay the proceedings in the state court pending the action of the bankruptcy court. No order was entered in the circuit court upon this motion, and several terms of the court passed without any other pleading being filed in the state court. The bankruptcy court finally discharged Ware Brothers from their debts, among which was listed the note here sued upon. A conversation then occurred over the telephone between the attorneys for Ware .Brothers and for Robert Herman, with reference to time in which to prepare a plea setting up a discharge of the debt sued upon. No agreement, was reached as to this, and at the next term of court, after the discharge, the defendants, Ware Brothers, asked leave to amend their motion so as to show the discharge in bankruptcy, and to be permitted to file pleadings in due form setting up such discharge. This was objected to by the appellant, who contended that he ivas entitled to judgment because no pleading had been filed, and moved therefor. The court overruled the motion of plaintiff, Robert Herman (appellant here), for judgment by default, and sustained the motion of Ware Brothers (appellees here) to amend their motion, and permitted them to file the pleadings setting up the discharge in bankruptcy, which plead,ings were filed in due form. The plaintiff, Robert Herman, declined to replv_to said pleadings, and, on motion of defendants, Ware Brothers, judgment was entered-for want of replication or tender of issue on said pleas, and final judgment was rendered in favor of Ware Brothers.

It is argued by the appellant that the court did not have discretion to permit the pleas to be filed after long delay in filing, and that he was entitled to judgment for want of pleading, that the suit was not abated by the filing of the petition in bankruptcy, but that it took an order of the court to stay the proceedings in the state court, and that, if the court did have such discretion, it abused it.

It appears from the testimony upon this motion for judgment for the plaintiff, appellant here, that not having the order to stay proceedings entered was an oversight, but that at each term of the court after the filing of the motion, when this case was called, the defendants, Ware Brothers, responded that the matter was in bankruptcy, and that the ease was passed from term to term.

It appears from the evidence that all parties seem to have been impressed with the idea that the order had been entered until the conversation referred to supra, when an investigation of the minutes showed that no such order had ever been entered upon the minutes.

Under the facts contained in this record, we think the court had the right to permit the pleading in discharge to be filed, and that it did not abuse its discretion in so doing, from which conclusion it rests that the judgment of the court below must be affirmed.

Affirmed.  