19 Cal. 162 | Cal. | 1861
Lead Opinion
Field, C. J. and Cope, J. concurring.
The only point we think it necessary to notice- is, whether the record of the insolvent proceedings of defendant was fatally defective, in this, that the schedule described the debt as a note of a certain tenor in suit in a certain Court, when, in fact, the debt had passed into judgment a short time before the filing of the insolvent petition. We think this variance not fatal. The direction of the statute is to require the petitioner to describe and identify the indebtedness; and a mistake as to the condition of that indebtedness—as "whether reduced to judgment or not—is not of essential importance, if the indebtedness be so described as that the holder of it can readily identify it. We think this could easily have been done by the description given in the schedule. If suit were pending in a distant county, it might be impossible for the insolvent to know at the time of filing the petition whether judgment had been taken or not; and we see no loss or injury to the creditor by a designation of the indebtedness in this form. Indeed, it fulfills all the
2. There is nothing in the point that suit could not be brought in one District Court on a judgment recovered in another. (See Ames v. Hoy, in this Court.)
It is not necessary to notice the other points.
Judgment reversed and cause remanded.
Rehearing
—Field, C. J. concurring.
Petition for rehearing. Upon the main question passed upon in the opinion, which was the effect of the variance in the form of indebtedness described in the defendant’s petition in bankruptcy from that in proof—a judgment instead of a note—we adhere to our conclusion that, under the circumstances, this mistaken description did not avoid the bankrupt’s discharge.
Many technical questions are made by the respondents’ counsel, and as it is deemed important as matters of practice that they be now settled, we propose briefly to notice them.
1. The first objection to the insolvent proceedings offered in evidence and ruled out is, that the District Court, before which the proceedings were taken, had no jurisdiction, in this : that the petition is addressed to “ the Court, and not to the Judge.” This exception is entirely too technical. The District Court has jurisdiction of the matter, and the Judge constitutes the Court; and as this is not a chamber proceeding, it is difficult to see why this address is not sufficient. Indeed, the words “Judge” and “ Court” are in this and other places used as convertible terms.
2. That the petition is not signed by the insolvent, but by an attorney. The answer is, that the statute does not require any signature of the insolvent to the petition. It must be verified by him, but may be signed as any other pleading. The thirty-third section (Wood’s Dig. 497) does not touch this point; that section merely providing that an agent shall not make the application, oath, etc.
3. That the schedules are not signed by the insolvent. All the
4. Notice to creditors insufficient. Several points are taken in this connection, but they are not sustained by the record. The notice is not process, and if it were, the form of its address is not a fatal error going to the jurisdiction.
5. That the schedule of losses is insufficient. We see no fatal defect in this respect. But it is not necessary to go into this matter, or the subsequent errors assigned ; for, upon the theory of the respondents’ counsel, that the District Court, in matters of insolvency, is in the exercise of a special jurisdiction, and that the strict rules applicable to such Courts apply, it is clear that the Court acquires its power to act by the filing of the petition, or at most, by the petition and notice; and that after this, the acts of the Court are movements within the jurisdiction, and not conditions to it. (See Grignon’s Leessees v. Astor et al., 2 How. U. S. R. 338 ; and cases in 18 Cal. 506.)
6. The decree of discharge seems to be regular and regularly made. It does not purport to be a chamber order.
7. There is nothing in the point that all the proceedings are void, because the petition does not aver that the debts were not fiduciary, etc. The thirtieth section denies the claim of such debtors to the benefit of the act, at least so far as this sort of indebtedness is concerned ; but there is no requirement that the petition shall, on its face, expressly ignore this ground of exclusion; besides, the petition, showing the character of the indebtedness and how it arose, would seem to be sufficient to meet this objection.
It is not necessary to notice other points.
Rehearing denied.
