Arvil Wesley Welborn, Jr., Bankrupt, Appellant, v. General Finance Corporation of Atlanta, Appellee, 330 F.2d 602 (5th Cir. 1964)

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US Court of Appeals for the Fifth Circuit - 330 F.2d 602 (5th Cir. 1964) April 14, 1964

James O. Goggins, Atlanta, Ga., for appellant.

C. James Jessee, Jr., Smith, Swift, Currie, McGhee & Hancock, Atlanta, Ga., for appellee.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and CARSWELL, District Judge.


This is an appeal from a judgment of the trial court denying an injunction against the levying of a judgment against the appellant, who failed to plead a discharge in bankruptcy as a defense to the suit which has subsequently been reduced to judgment. While we share the concern expressed by the trial court over the plight of the appellant resulting from his failure to plead the available defense of discharge in the state court suit, we perceive no difference between this situation and the ordinary case in which a party permits a case to go to default judgment against him, whether through ignorance or inattention, or failure of counsel.

There being no basis for setting aside the state court judgment on the ground of fraud, duress or coercion we conclude that the judgment of the trial court must be affirmed.