Opinion
No. 30284
Decided October 31, 1945.
Supreme Court — Appeal dismissed — No bill of exceptions — Proceedings in aid of execution — Judgment for breach of promise to marry — Discharge of debt and judgment debtor in bankruptcy proceeding — Section 35, Title 11, U.S. Code.
APPEAL from the Court of Appeals of Lucas county.
ON MOTION to dismiss.
Plaintiff brought an action against the defendant in the Court of Common Pleas for breach of contract to marry, alleging in her petition that the parties promised to marry each other, that in utter, total and wilful disregard of the welfare and happiness of the plaintiff, defendant refused, failed and neglected to perform his promise to marry plaintiff, and that as a result of the defendant's wanton and wilful misconduct she was damaged in the sum of $15,000. The petition contains no allegation that defendant's promise of marriage was accompanied by seduction, and no attempt was made to prove seduction. That court overruled motions by the defendant to make the petition definite and certain as to whether defendant seduced plaintiff and to strike the word "wanton" from the petition. The answer of the defendant was a general denial.
The jury returned a verdict in favor of plaintiff for $2,500. A motion for new trial was not filed and judgment was entered on the verdict.
Plaintiff thereafter instituted proceedings in aid of execution by filing a motion and an alias motion for examination of the judgment debtor, supporting each motion with an affidavit by her counsel.
The defendant filed an unverified motion to dismiss the motion of the plaintiff for examination of the judgment debtor, for the reason that defendant had filed a schedule of debts in bankruptcy which listed plaintiff for $2,500 and defendant had been discharged as a bankrupt. The entry of the court overruling the motion of the defendant, after reciting that "the matter was submitted to the court upon the evidence adduced upon the hearing of said motions, upon the memorandum of the said defendant debtor in support of his motion, upon the transcript of all the evidence taken at the trial of said cause, and upon the arguments of counsel for plaintiff and defendant," found "that the defendant debtor Steve Molnar's conduct toward the said plaintiff in said cause was ruthless, malicious, wilful and wanton and that the verdict of the jury and the judgment entered thereon" were of such nature as contemplated by the U.S. Code, Title 11, Section 35 "entitled 'Debts not affected by a discharge,' to wit; * * * or for wilful and malicious injuries to the person or property of another * * *."
The defendant then prosecuted an appeal to the Court of Appeals, which affirmed the judgment of the Court of Common Pleas.
A motion to certify the record to this court was allowed.
The appellee filed a motion to dismiss the appeal to this court for the reason that no bill of exceptions was presented to and allowed by the Court of Appeals of Lucas county as required by Section 11564, General Code.
Mr. A.R. Kipperman, for appellee.
Mr. Stephen A Fazekas, for appellant.
Appellant contends that "there was no allegation * * * that the cause of action for breach of promise of marriage was accompanied by seduction"; that there was no proof or claim of seduction; that a judgment for breach of contract to marry is a dischargeable debt and is unqualifiedly released by a discharge in bankruptcy unless there is seduction in connection with the breach of promise of marriage; that a debt based on a breach of contract to marry does not come within the provision of Section 17 of the Bankruptcy Act as a liability for wilful and malicious injury to the person or property of another; and that the trial court "made an improper and unlawful interpretation of the Bankruptcy Act in its effort to decree and declare that the plaintiff's judgment was not in fact discharged."
The record before this court does not contain a transcript of any testimony. There is, however, a "stipulated defendant's bill of exceptions" which was not signed or approved by the trial judge.
There is no evidence in the record to show that the judgment debtor ever filed a petition in bankruptcy, that he ever listed the breach-of-promise judgment in his schedule of debts, or that he was ever declared a bankrupt or discharged in bankruptcy. Therefore, the matter of a bankruptcy proceeding was not before the Court of Appeals and is not now properly before this court.
The motion to dismiss the appeal is sustained and the appeal is dismissed for failure to file a bill of exceptions as required by Section 11564, General Code. Black et al., Exrs., v. Wolfe, Aud., 141 Ohio St. 465, 48 N.E.2d 897.
Appeal dismissed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.