BARBACHANO ET AL.

v.

ALLEN ET AL.

With respect to this matter, however, ap-pellees assert that it was not claimed in the trial court that any part of the judgment was for willful and malicious injuries to person or property and therefore this contention cannot be made here. In response to this assertion the appellants, by motion in this court, asked leave to supplement the record on appeal by furnishing the court the plaintiffs’ brief filed in the court below in support of their motion to enforce the judgment. This motion to supplement the record was granted, and the brief so filed with the trial court has been furnished here. Subsequently the ap-pellees filed their motion to vacate the order granting permission to file that brief. We reserved action thereon until disposition of the appeal itself.

We think it apparent from the record and the motion papers of both parties that the defense of discharge in bankruptcy was first presented by the appellee, Willis Allen, in response to appellants’ motion for issuance of execution. The motion came on for hearing on July 3, 1950, at which time the court suggested that instead of making oral arguments upon the motion, the parties present briefs. The brief presented by the appellants in support of their motion is the one which we have permitted to be filed to supplement the record. It discloses that the appellants did present the argument that Willis Allen’s liability “is likewise excepted from the discharge, as being one for ‘willful and malicious injuries to the * * * property of another’ within the meaning of the further language of the same clause of the Bankruptcy Act”.

It sufficiently appears that this point was made in the trial court and appellants may urge it here. We therefore hold that to the extent of the $10,000 recovery contained in the judgment, the debt of the ap-pellee Willis Allen was not affected by the discharge.

Accordingly, the district court is directed to modify its order so as to require writ of execution to issue against Willis Allen upon so much of the judgment as awards the sum of $10,000, the execution to include a proportionate amount of the costs in said action, together with interest on said sums at the statutory rate to the date of the writ.

On Petition for Modification.

PER CURIAM.

Subsequent to the date of the court’s opinion herein, the appellees filed a so-called “Petition for Modification of Opinion and Judgment”, which is, in substance, a petition for rehearing, and we have therefore treated it as such.

Appellees find fault with the statement in the court’s opinion that “the defense of discharge in bankruptcy was first presented by the appellee, Willis Allen, in response to appellant’s motion for issuance of execution”. They point out that the record shows that the appellants’ motion itself discloses that appellants were aware of the discharge and asserted in their memorandum of authorities attached to the motion, that the judgment debt was not discharged because the judgment was “in damages for fraud”. It is also asserted that the court was in error in suggesting that the record discloses that the briefs filed by the parties in the lower court were in lieu of oral arguments; that extensive oral argument was first had and that the court tíren granted permission to-the parties to file briefs simultaneously. It is asserted that the record discloses that the trial court requested briefs on but two points which did not include the question of whether the judgment was one for willful and malicious injuries to person or property. It is contended, therefore, that the appellants had no right to insert an argument upon that point in their trial court brief.

Appellees further say that although attached to that brief, which has been furnished here pursuant to our order permitting the record to be supplemented, is an affidavit showing that it was served upon counsel for appellees by mail, yet appellees never received a copy thereof, and had no knowledge of its contents prior to the time when the court ruled upon the motion for issuance of execution. Appellees say that if this point had been raised during the oral argument, or if they had been aware of the contention of appellants’ brief, they would not only have presented argument on the merits but also additional evidence. Attached to the motion is an affidavit of Willis Allen setting out in detail what this evidence would have been.

We think that appellees should not be deprived of any substantial right through any mistake, surprise or excusable neglect which prevented them from a full presentation of their side of the controversy either in the trial court or in this court. We note, however, that after this court had made its order of June 8, 1951, permitting appellants to file here their brief in the trial court, appellees filed a motion to set aside that order, to which was attached an affidavit reciting that the trial court had given both sides an opportunity to submit simultaneous briefs, original briefs to be filed by September 1, 1950, and reply briefs by September 20, 1951. The affidavit then recites, “That thereafter, on or about August 31, 1950, plaintiffs and defendants filed their respective briefs.” There was no claim of want of service or of notice.

It would appear that appellees must have known or should have assumed, that the brief in question was in fact filed. We are unable to discover in the transcript of proceedings in the trial court, at the time leave was granted to file briefs, anything to indicate that the trial judge undertook to limit the points which the parties might argue in their respective briefs. What the trial judge did was to indicate that there were two points upon which he requested authorities. In our view, it was open to either party to present arguments upon any point of law or legal theory he might choose at any time prior to the final submission of the cause. The fact that appellants’ motion for execution, in anticipating a plea of discharge, made mention only of “fraud”, did not foreclose them from enlarging their argument later. The affidavit attached to the present petition sets forth the evidence or testimony which appellee, Willis Allen, says he would have supplied had he known that the point of willful and malicious injury to person or property was being presented. This was evidence to the effect that the damages awarded in the action were not caused by the so-called unlawful attachment; that the attachment worked no delay in the completion of the radio station, but that the delays were due to other causes.

It seems clear to us that it was not open to appellees thus to make a collateral attack upon the judgment here sought to be enforced, for the judgment is predicated upon the findings which are set out in this court’s opinion and which expressly recited, “That by reason of such attachment the plaintiffs herein were prevented from completing the construction” of the station within the required time, and that as a consequence, plaintiffs were compelled to expend the additional $10,000 for a reinstatement of the concession. If the failure of appellees to understand or appreciate the contents of appellants’ brief before the trial court could be characterized as excusable neglect, it is nevertheless apparent that they suffered no avoidable adverse consequences therefrom, for it was not permissible to them then to retry or relitigate the matters which had been determined by the findings and judgment.

The record before us contains the pleadings, the findings, and the judgment in the action. These disclose an express determination that $10,000 of the judgment sum was awarded for willful and malicious injuries. What that record recites we must accept as true for the purpose of determining the question here presented. In re Greene, 7 cir., 87 F. 2d 951, 953, 109 A.L.R. 1188. Appellees contend that the award of $10,000 was not for tort, but for a wrong arising ex contractu, because the attachment suit was one upon a contract. But the findings show that the recovery was for a wrongful attachment, which was coupled with a slander of title. This was in tort, not in contract. Where the findings are thus clear, they must be accepted. Only when the record does not disclose the nature of the claim, as in Greenfield v. Tuccillo, 2 cir., 129 F. 2d 854, may the parties offer proof aliunde. In re Greene, supra; cf. Davis v. Aetna Acceptance Co., 293 U.S. 328, 331, 55 S.Ct. 151, 79 L.Ed. 393.

The petition is denied.

The judgment of modification is amended by adding thereto the direction to the Clerk that the appellants shall recover upon this appeal one-half the cost of printing the record and all of their other costs.

. Federal Rules of Civil Procedure, rule 60(a), 28 U.S.C.A.: “ * * * The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable. * * * ”

Section 685, Oalifox-nia Code of Civil Procedure: “In all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code. * * * ”