Plaintiff (defendant in error) filed a suit against the defendant (plaintiff in error), in a justice court upon an unconditional contract in writing, to which defendant filed a plea setting up his discharge in bankruptcy. The case came on regularly to be tried and neither defendant nor his counsel appeared. Upon motion of the plaintiff, the justice of the peace entered a judgment in which he "overruled and dismissed" the plea in bankruptcy and then entered a judgment for the plaintiff and against the defendant. Held: Whether or not the plea of discharge in bankruptcy was subject to dismissal for failure of proof in support thereof or for lack of prosecution, see Andrews v. Andrews, 85 Ga. 276 (1) (11 SE 771), Yancey v. Karwisch, 129 Ga. 788 (1) (59 SE 777), in the absence of any proof upon the trial to sustain the plea of discharge in bankruptcy, the burden of proof being upon the defendant to do so, Williams v. First Nat. Bank, 21 Ga. App. 182 (1) (94 SE 73), Whitley v. Jackson, 34 Ga. App. 283 (2) (129 SE 294), Riggs v. Kinney, 37 Ga. App. 307, 308 (140 SE 41), the plaintiff was entitled to a judgment upon the unconditional contract.
Smith & Smith, Douglas E. Smith, contra.