(77 South. 969)

#### CHEWNING v. KNIGHT.

(7 Div. 474.)

(Court of Appeals of Alabama.

Feb. 5, 1918.)

1. Bankruptcy <&wkey;431 — Discharge of Bankrupt — Effect as to Sureties.

The sureties on an appeal bond can be proceeded against, though the judgment against the principal was barred by his discharge in bankruptcy, unless the discharge was successfully pleaded in the suit between the obligee and the principal in which the bond was given.

2. Pleading <&wkey;205(5) — Demurrer — Requisites and Sufficiency.

In action against surety on appeal bond, who set up discharge of the principal in bankruptcy, demurrer to a plea of the discharge, failing to point out the defect that such plea failed specifically to allege that the discharge had been successfully pleaded in the principal suit was insufficient in view of Code 1907, § 5340, providing that-no objection may be allowed which is not distinctly stated in the demurrer.

3. Pleading <&wkey;210 — “Speaking Demurrer” — Defects.

Grounds of demurrer setting up facts not apparent on the face of the plea demurred to were bad as speaking demurrers.

[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Speaking Demurrer.]

*358*4.*Bankruptcy <&wkey;435 — Pleading Discharge.

In action' against surety on appeal bond, who set up discharge of the principal in bankruptcy, demurrer to a plea of discharge failing to point out the defect that such plea is bad because it does not appear that the plaintiff was ever a party to the bankruptcy proceedings, or presented his'claim therein is not well taken, since such matter was properly the subject for a special plea.

Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.

W. Y. Chewning, doing business in the name and style of the Chewning Grocery Company, sued W. H. Knight. From a judgment for defendant, plaintiff appeals.

Affirmed.

The action was upon a bond given by Wyatt Bass, W. H. Knight, and another in an appeal taken by Wyatt Bass fr'om a. judgment rendered against him in favor of Chewning, doing business, etc., in the justice court of M. H. Radney, the breach of which is alleged to be the failure to prosecute the appeal to effect, and to pay ,the costs and damages incident thereto. Defendant set up failure to sue the other obligors, and failing to show a reason for not so suing. The third plea is that defendant says that the principal of said bónd, the said Wyatt Bass, was discharged in bankruptcy from the demands here sued upon before the cause was finally determined in the circuit court where said cause was pending.

Stell Blake, of Roanoke, for appellant. R. J. I-Iooten, of Roanoke, for appellee.

BROWN, P. J.

[1] The fact of the discharge in bankruptcy of the principal obligor on the appeal bond was not in and of itself a bar to this action, unless the discharge was successfully pleaded in the suit between Bass and Chewning in which the bond was given, thereby preventing the recovery of a personal judgment against Bass in the successful prosecution of his appeal. Young & Co. v. Howe et al., 150 Ala. 157, 43 South. 488.

[2, 3] Wlhile the defendant’s plea 3 does not show by its averments that the discharge was successfully pleaded in the action in which the bond was given, and was demurrable for that reason, this defect was not pointed out by the demurrer. Code 1907, § 5340; Henley v. Bush, 33 Ala. 636; Tenn., Ala. & Ga. R. R. Co. v. Cavin, 77 South. 80.1 The first and second grounds of demurrer set up facts not apparent on the face of the plea, and were “speaking demurrers,” and for that reason were bad. Glenn v. City of Prattville, 14 Ala. App. 621, 71 South. 75; Huss v. Central R. R. Co., 66 Ala. 472; Sanders v. Wallace, 114 Ala. 263, 21 South. 947; First Nat. Bank v. Leland, 122 Ala. 289, 25 South. 195.

[4] The third ground of demurrer, “because it does not appear that the plaintiff was ever made a party to the bankruptcy proceedings, or presented his claim therein,” was *not*well taken. Roden Grocery Co. v. Leslie, 169 Ala. 579, 53 South. 815.

On the principle first above stated, it is not essential to a good plea of discharge in bankruptcy in a case of this character that it show a defense personal to the surety. If the discharge was successfully pleaded by the bankrupt in the action in which the bond was given so as to prevent a personal judgment against the bankrupt, the sureties on the bond would not be liable, because of a successful prosecution of the appeal by the principal obligor. Young v. Howe, supra. For this reason, the fourth ground of demurrer was not well taken.

No error appearing in the record, the question of the necessity for a bill of exceptions to show injury from error is *not*presented. Wilson v. Owens Horse & Mule Co., 14 Ala. App. 467, 70 South. 956.

Affirmed.

1

Ante, p. 212.