Barrett v. Carney, 33 Cal. 530

Barrett v. Carney

33 Cal. 530 | Cal. | 1867

Lead Opinion

By the Court, Currey, C. J.:

This action was brought to recover the several amounts which appeared to be due on five promissory notes made by the defendant. He answered, pleading the general issue, and also, as an affirmative defence in bar to the several causes of action set forth in the complaint, a judgment and decree of the County Court of El Dorado County discharging him from all his debts under the provisions of the .Act entitled “ An Act for the relief of insolvent debtors and the protection of creditors.”

The plaintiff, having produced his evidence and rested, the defendant offered in evidence certain proceedings in insolvency, wherein he was plaintiff and his creditors were defendants. To the offered evidence the plaintiff objected on the grounds : First—That there was no legal evidence of the publication of notice to creditors, in that the affidavit of the fact was not made by a person authorized by the statute *534to clo so. Second—That the petition did not show that the County Court had any jurisdiction of the person of said Carney, because it did not state that he had resided in the county six months prior to the filing of such petition; and Third—That the notes on which the action was brought were not described in the defendant’s schedule of indebted- • ness annexed to his petition. The Court sustained the objections, and, as a consequence, the evidence offered was rejected. To this ruling the defendant excepted. Judgment was then given for the plaintiff for the amount of the notes and the interest due on the same. The defendant moved for a new trial, relying, as it - appears from the statement, which was settled by the District Judge, upon the alleged error of the Court in. sustaining the objection to the offered evidence. The statement does not profess to set forth entirely the proceedings had in the insolvency case, but only so much thereof as was deemed necessary to preserve upon the record sufficient to present for review the question of law involved in the objection, ruling and exception. The motion being overruled, the defendant appealed from the judgment and the order denying a new trial.

I. The petition of Carney, the alleged insolvent, together with the schedules accompanying it being filed, the Judge of the Court in which the insolvency proceeding was instituted made an order summoning the creditors to be and appear before him in open Court, at a particular time and place, then and there to show cause, if any they had, why the prayer of the insolvent should not be granted, and an assignment of his estate be made and he be discharged from his debts and liabilities; and further, that the Clerk of the Court issue a notice to the creditors to appear at the time and place and for the purposes so specified, and that such notice should be published at least thirty days in a particular newspaper published in the county. The notice issued and published was in due form. The proof of its publication was by affidavit made by one of the proprietors of the newspaper designated, to the effect that such notice was published *535in such newspaper, the same being a weekly newspaper, regularly once a week for more than thirty days immediately following the date of the order of the Judge and the issuing of the notice by the Clerk. The objection to the competency of the proprietor of the newspaper who made the affidavit is answered by this Court in Schloss v. His Creditors, 31 Cal. 203, to which counsel are referred, as that cáse seems to have escaped their attention in the submission of this case upon briefs.

IT. The validity of the decree discharging the defendant from his debts under the Act named was, and is still, objected to on the ground that the petition does not affirmatively show that he had been a resident of the County of El Dorado for six months immediately prior to presenting it to the Judge. It is maintained on the part of the plaintiff that six months residence by the petitioner, in the county in which the proceeding is instituted in insolvency cases, next preceding the time of filing the petition, is a fact of jurisdictional consequence.

The second section of the Act mentioned reads as follows: “Such insolvent debtor shall petition the Judge having original jurisdiction within the place of his domicil or usual residence, which petition shall briefly state the circumstances which compel him to surrender his property to his creditors, and shall conclude with a prayer to make a cession of his estate and to be discharged from his debts, in pursuance of the provisions of .this Act; provided such insolvent debtor shall have resided within the county where he files his petition for "at least six months next preceding the filing of the same.” (1 Hittell Gen. Laws, 3,811.) All that this section of the Act requires the petitioner to state in his petition is the circumstances which compel him to surrender his property to his creditors, accompanied with a prayer expressive of his desire to make a cession of his estate, etc. The same section makes a six months residence in the county, next preceding the filing of his petition, a condition precedent to his right to institute the proceeding; and it may be admitted that the *536better practice is for the Judge to require the condition of residence for the necessary period to be made to appear by the petition, but the statute does not require this in order to clothe the Judge or Court with jurisdiction in the premises. The Act of Hew York of 1813, for giving relief in cases of insolvency, provided that every person applying for the benefit of the Act should make application in the county of which he was an inhabitant, or wjthin which he was imprisoned, and not elsewhere, and required proof of such fact to be made to the Judge or officer before any order notifying the creditors of the application should be granted. In pleading a discharge under this Act, it was held in many cases that the plea must show that the party relying upon the discharge in har of a recovery was an inhabitant of the county when making application for the benefit of the Act. (Service v. Heermann, 1 John. 91; Trary v. Daken, 7 John. 75; Ropevelt v. Kellogg, 20 John. 208; Wyman v. Mitchell, 1 Cow. 316; Porter v. Miller, 3 Wend. 329.) The facts essential to the jurisdiction of the Courts or officers discharging insolvent persons under the Hew York Act had to be averred in collateral actions in which such decrees were pleaded, because they were the decrees of Courts or officers of limited or special jurisdiction. In such cases a general averment of jurisdiction was not sufficient, but the facts upon which it depended had to appear. (Jones v. Reed, 1 John. Cas. 20; Dakin v. Hudson, 6 Cow. 221; Cleveland v. Rogers, 6 Wend. 438; Lawton v. Erwin, 9 Wend. 237; Foot v. Stevens, 17 Wend. 483; Hart v. Seixas, 21 Wend. 45; Bloom v. Burdick, 1 Hill, 139; People v. Koeber, 7 Hill, 40.) The rule in respect to judgments, decrees and decisions of Courts and officers of limited jurisdiction is one resting for its support on a solid foundation, which is understood by every person well learned in the law. But as obviating this objection, the appellant maintains that the same intendments should be made in aid of the jurisdiction of County Courts in insolvency cases — the same being Courts of record—as are indulged in respect to judgments of Courts of general com*537mon law jurisdiction, in actions- of common law cognizance; and, from this predicate, he argues that when the record fails to show that the Court had not jurisdiction, it will be intended, in support of the judgment rendered in a cause within its jurisdiction as to subject matter, that the Court had jurisdiction of the parties. We are of the opinion that according to the recent decision of this Court in Hahn v. Kelly, the position of the defendant is a conclusive answer to the objection suggested; and that as County Courts are Courts of record, it will be presumed, in a.collateral action such as this, that the petitioner was a resident of El Dorado County for the period necessary to give the County Court of that county jurisdiction of the parties and subject matter in that case; and, consequently, that the defendant was not bound to prove, otherwise than by production of the record in the insolvency case,-that the County Court had jurisdiction of the parties therein.

III. One of the objections to the judgment roll in the ease of Carney v. His Creditors, as evidence, was that the notes on which the action was brought were not sufficiently described in the schedule annexed to the petition.

The third section of the Act for the relief of insolvent debtors and the protection of creditors requires the debtor to annex to his petition a schedule, consisting of a summary statement of his affairs, with a list of losses he may have sustained, giving the names of his creditors, if known, the amount due to each creditor, and the cause and nature of said indebtedness, and when it accrued, and a statement of any existing judgment, mortgage, collateral or other securities for the payment of any such debt.

The twenty-fourth section of the same Act provides that if an accusation of fraud brought against the debtor be declared ill founded, or if there be no opposition to the surrender of his property, and “ provided said surrender has been made according to the provisions of this Act, said debtor shall be released and fully discharged from any and *538all debts until then contracted, and contracted after the passage of this Act, and from every judicial proceeding relative to the same; provided always, that the release and discharge authorized by this section shall not apply to the debts and liabilities not mentioned and set forth in the schedule, unless the insolvent shall declare in his petition that it is his desire to be discharged from all his debts and liabilities, and that he has described them according to the best of his knowledge and recollection; in which ease the discharge and release authorized by this section shall embrace all his debts and liabilities, notwithstanding they may have been imperfectly described, or not described at all.” (Laws 1860, p. 283.) The schedule in this case does not give the name of the plaintiff as a creditor of -the defendant; nor does it state affirmatively that he was ignorant of the name of the owner of the notes, nor that the owner’s name was unknown to him. An objection of this character was held fatal to a decree discharging the defendant as an insolvent debtor in Judson v. Atwill, 9 Cal. 478. This decision was made under the Act before the amendment of the twenty-fourth section, in 1860. The difference between the original section and the section as amended consists in the provisos. The proviso which was a part of the original section was as follows : “ Provided always, that said insolvent debtor shall be released and discharged only from such debts and liabilities as he shall have set forth and named in his schedule.” It will be noticed that the amendment does not dispense with the necessity of giving the names of the creditors, if known. But, it will be observed by reference to the petition in insolvency of the defendant, that though he does not, in terms, negative all knowledge of the name of the owner of the notes in question, still he states that the schedule of his debts and liabilities, annexed to his petition, contains the names of his creditors “ as near as he can now state them, and the amount due each creditor; the cause and nature of said indebtedness, and when it accrued, and a statement of any existing judgment, mortgage, collateral or other security *539for the payment of any such debt.” This, we think, is tantamount to stating that he did not know who was the owner of the notes, and was a substantial compliance with the statutory requirement upon this point. Then, if the description contained in the schedule was sufficient information to the plaintiff, as one of the creditors, to enable him, upon an examination of the proceedings in insolvency on file, to identify the notes in the plaintiff’s hands as the notes mentioned in the schedule, the law, in this respect, must be deemed to have been satisfied. This leads to the inquiry, whether the description of the notes was sufficient for the purpose named. The several notes described in the complaint bear date and are payable as follows : The first bears date April 27th, .1864, in the sum of fifty dollars, and is made payable to Samuel Colwell, or bearer, three months after date, with lawful interest; the second bears date April 30th, 1864, and is made payable in the sum of fifty-four dollars, to Berryman Pitman, or bearer, on demand, with lawful interest; the third bears date June 16th, 1864, and is made payable in the sum of one hundred and fifty-five dollars, to Eli H. Robards, or bearer, three months after date, with lawful interest; the fourth bears date July 23d, 1864, and is made payable in the sum of two hundred and sixty-three dollars, to Michael Righter, or bearer, three months after date, with lawful interest; the fifth bears date July 11th, 1864, and is made payable in the sum of one hundred dollars, to Henry Sesterfleth, or order, three months after date, with interest at two per cent per month, and is signed by G-. Barrette as surety. Each of these notes the defendant made and delivered, and the plaintiff became the owner of them by proper assignments. The descriptions contained in defendant’s schedule of indebtedness in his insolvency proceeding, which he claims refer to and sufficiently identify the notes described in the complaint, are as follows : First— “ Samuel Caldwell, note dated April 24th, 1864; amount due, fifty dollars; interest, ten per cent a year from date.” Second—“ Michael Richtner, note dated April 23d, 1864; *540amount due, two hundred and sixty-three dollars; interest from date, ten per cent a year.” Third—“ Eli H. Robarts, note dated on or about July 16th, 1864; amount due, one hundred and fifty-five dollars and seventy cents; interest ten per cent per year from date.” Fourth—“ Berriman Pitner, note dated April 30th, 1864; amount due, fifty-four dollars; interest ten per cent a year from date.” Fifth— “ Henry Sesterfleth, note dated about July 1st, 1864, G-. Barrett, surety; amount due, one hundred dollars; interest two per cent a month from date.”

It cannot be said the notes are not described at all in the schedule, because there are correspondences between the several notes set forth in the complaint, and those described in the schedule, which would suggest at least their identity. The descriptions in the schedule are imperfect, and this is the most that can be said in objection to them. We are of the opinion the defendant’s petition and schedule of debts was sufficient, under the provisions of the twenty-fourth section of the Act, to satisfy'the demands of the law, and that he became, by the decree of discharge in the insolvency proceedings, absolved from legal liability to pay the amount due on the notes described in the complaint, and for the recovery of which this action was brought.

Judgment reversed and new trial ordered.

Mr. Justice Shafter did not express an opinion.

Rehearing

By the Court, Sawyer, C. J., on petition for rehearing:

The authorities cited to the first point discussed in the petition for rehearing contain nothing in conflict with anything said in the opinion in this case. In those cases the questions arose on appeals from the judgment in the same proceedings, and were presented by, and determined on, the pleadings. When the objection is taken and passed upon, and exception taken in the course of the proceeding, and it does not appear in the record on appeal that the objection *541was obviated in any mode, it will not be presumed, on appeal from the judgment, that the respondent has obviated the objection in some other way. In the present case the attack upon the judgment is made collaterally, and, if it is legally competent for the petitioner to inform the Court that he had been a resident of the county for a period of six months prior to his application for a discharge, in any manner other than by a statement of the fact in the petition itself, then, since the County Court is a Court of record, in a collateral proceeding, it will be presumed, in support of the judgment that the Court satisfied itself of the fact of residence in some- appropriate mode before taking jurisdiction of the proceedings. The second section prescribes what the petition shall state; but does not say that he shall state the fact of residence, and we find nothing in the statute requiring it to be therein stated. In the Probate Act the fifty-eighth section formerly provided that “ the petition must state the facts essential to give the Court jurisdiction of the case,” and, as the residence of the defendant, at the time of his death in the county, is a jurisdictional fact, it was properly held under this provision that this fact must be stated in the petition for letters of administration. But it was afterwards provided, that if the jurisdictional facts existed and were not fully set forth in the petition, but were afterwards proved in the course of administration, the judgment should not be void for want of such jurisdictional averment. In the Act concerning insolvent debtors, as we have seen, while the facts to be stated in the petition are prescribed, it is not provided that the fact of residence in the county shall be there stated. We do not perceive, therefore, why it may not be legally competent to inform the Court of this fact in some other mode. This being so, and the Court being a superior Court, in a collateral proceeding, we must presume that the fact of the required residence was duly ascertained.

As we suggested in Wilson v. His Creditors, 32 Cal. 407, but without holding such averments absolutely essential, it *542would be much more orderly to state the fact of residence in the petition.

We find nothing more in the petition requiring further notice.

Rehearing denied.

Mr. Justice Rhodes did not express an opinion on petition for rehearing.

[The opinion on petition for rehearing was not rendered until the April Term, 1868, when Mr. Justice Sawyer had become Chief Justice of the Court.—Rep.]