
    In re DE BOCK.
    (District Court, N. D. California, S. D.
    May 9, 1925.)
    Nos. 1263, 1264.
    I. Bankruptcy <@=421 (I) — Judgment in unlawful detainer action to recover property purchased on execution sale under judgment for alienation of affections is dischargeable in bankruptcy (Bankruptcy Act, § 17 [Comp. St. § 9601]).
    Though judgment in action for alienation of affections, in whatever form, is nondischargeable under Bankruptcy Act, § 17 (Comp. St. § 9601), judgment in unlawful detainer action to recover property purchased on execution sale under alienation judgment is dischargeable; that plaintiff in alienation action became purchaser at execution sale being immaterial
    
      2. Bankruptcy @=^315(1).
    In absence of stay or supersedeas, appeal from judgment against bankrupt in unlawful detainer action does not render judgment non-provable in bankruptcy.
    In Bankruptcy. In the matter of Clara E. De Bock, bankrupt. On motions to dismiss application for discharge.
    Motions denied.
    Thomas B. Leeper, of Sacramento, for objecting creditor.
    Hughes, Bradford, Cross & Prior, of Sacramento, for bankrupt.
   KERRIGAN, District Judge.

These matters rise out of an action for alienation of affections, in which Catherine M. Johnston, here an objecting creditor, obtained a judgment for $5,000 against the present bankrupts. Said Catherine M. Johnston also is purchaser of certain real property which was sold to her on execution sale to satisfy the judgment thus obtained. She also is holder of an unsatisfied judgment against the bankrupts, rendered in an action brought by her for the unlawful detainer of said property after its purchase by her. From the second judgment bankrupts have prosecuted an appeal to the Supreme Court of California, and said appeal is now pending. 244 P. 330.

Applications for discharges in bankruptcy have been duly made to this court, and the statutory period for proof of claims has elapsed. Various debts were listed in the schedules filed, but a single claim alone has been presented to the referee in each ease; one based on the judgment in unlawful detainer.

The objecting creditor now asserts that there is no jurisdiction to grant a discharge, and moves that the proceedings be dismissed, alleging that said claim is nondischargeable; and, if dischargeable, nevertheless nonprovable.

The first objection is untenable, because the judgment in question did not, as has been urged, arise out of an action “for willful and malicious injuries to the person or property of another.” Bankruptcy Act, § 17 (Comp. St. § 9601). The original alienation judgment was, it is true, based on such an injury; and in whatever form now existing, would be held to be nondischargeable. 7 C. J. 402; In re Colaluca (D. C. Mass.) 133 F. 255, 13 Am. Bankr. Rep. 292; Blackstock v. Blackstock (C. C. A. 8th Cir.) 265 F. 249, 45 Am. Bankr. Rep. 192. But a purchaser oil execution sale, illegally restrained by the judgment debtor from the use of property there purchased, cannot properly be said to assert a claim based on a willfiil and malicious injury to the judgment creditor when he sues for unlawful detainer. . It is of course wholly accidental that the purchaser is the judgment creditor, and-that fact is immaterial.

As for the contention that the appeal from this judgment rendered it nonprovable in bankruptcy, there is a recent decision of the Circuit Court of Appeals of this circuit to the contrary. Moore v. Douglas (C. C. A. 9th Cir.) 230 F. 399, 144 C. C. A. 541, 36 Am. Bankr. Rep. 740. It was there held that a “judgment” is a liability, whether appealed from or not, unless its execution has been stayed and a supersedeas bond has been filed. The affidavits which have been presented do not allege the'filing of such a bond, and we must assume that none in fact has been filed.

Hence, without passing on the question whether or not the failure of creditors to present claims deprives a court of bankruptcy of jurisdiction to grant a discharge, the motions will be denied, and it is so ordered.  