This is a motion by one S. H. Ris-don to vacate the decree of this court made January 2, 1902, by which Enoch Yates was upon his voluntary petition adjudicated a bankrupt, and for the dismissal of the petition in bankruptcy. The only debt mentioned in the schedule filed with the petition for adjudication is described as a judgment in favor of said Risdon for the sum of $894, rendered by the superior court of the state of California in and for the county of Napa, on August 31, 1901. The ground of the motion is that Yates is not a bankrupt, within the meaning of the bankruptcy act. It appeared upon the hearing of the motion that the judgment referred to was obtained in an action for a willful and malicious injury to the person of Risdon, the plaintiff therein; that after its rendition, and before the decree of adjudication in bankruptcy, an appeal was taken from that judgment to the supreme court of the state, and such appeal is now pending.

1. It was said by the supreme court of California, in the case of Harris v. Barnhart, 97 Cal. 550 , 32 Pac. 589 :

And section 1049 °f the Code of Civil Procedure of this state provides :

The appeal, therefore, from the judgment in the action of Risdon v. Yates suspended its operation, and may result in its reversal; and from this it follows that at the date of the adjudication in bankruptcy there was not, nor is there now, any certainty that the plaintiff in the action referred to will succeed in the recovery of any judgment against Yates. Such being the status of the claim for damages involved in that action, it is clear that Yates was not at the date of the filing of his voluntary petition a bankrupt, within the meaning of the law. Section 4 of the bankruptcy act provides that “any person who owes debts, except a corporation, shall be entitled to the benefits of this act as a voluntary bankrupt.” In subdivision 11 of section 1 of that act the word “debt” is defined as “any debt, demand, or claim provable in bankruptcy”; and subdivision “a” of section 63 of the bankruptcy act enumerates five different classes of debts which may be proved against the estate of the bankrupt, in one of which is' included “a claim for a fixed liability as evidenced by a judgment or instrument in writing, absolutely owing by the bankrupt at the time of the filing of the petition against him”; but a cause of action against him for unliquidated damages for a personal tort, such as is involved in the *367 action of Risdon v. Yates, before referred to, is not within either of the classes named. Subdivision “b” of the same section provides:

This subdivision is not to be construed as authorizing the proof of claims not declared in subdivision “a” to be provable. Its object is simply to provide that unliquidated claims which fall within the scope of subdivision “a” are to be liquidated in such manner as the court shall direct. Lowell, Bankr. p. 487; and see, also, the well-considered opinion of Judge Marshall in the case of In re Hirschman, 4 Am. Bankr. R. 716, 104 Fed. 69 . In the case of In re Maples, 5 Am. Bankr. R. 426, 105 Fed. 919 , it was held that the bankruptcy proceeding should be dismissed, where the only debt scheduled was a judgment for willful and malicious injury to the person, — a debt which, although provable under the provisions of the bankruptcy act, would not be affected by a discharge. With much stronger reason should the decree adjudging Yates a bankrupt be vacated, and the proceeding instituted by him be dismissed, because at the date of the filing of his voluntary petition there was no existing provable debt against his estate under the bankruptcy act. It will be time enough for him to apply for relief under the bankruptcy act, and to ask the court to pass upon the many questions which may arise in such a proceeding, when it shall be ascertained that he is indebted to some person upon a claim provable under the bankrupt act.

The order of adjudication is vacated, and the petition in bankruptcy dismissed.