Dambmann v. White, No. 3,633

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No. 3,633 | Cal. | Jul 1, 1874

Lead Opinion

By the Court, Crockett, J.:

The demurrer to the complaint was properly overruled. The statement in the complaint that the plaintiff is assignee in bankruptcy of Beinstein & Mamlock, may be treated as surplusage, or at most as descriptio persones, and may be disregarded without impairing the sufficiency of the complaint. Nor did tfye Court err in denying the motion for a nonsuit on the plaintiff’s opening statement. Under the general averment in the complaint, that “ the plaintiff was possessed as of his own property” of the goods and chattels enumerated, he was entitled- to show by proof that he had acquired the title by means of the proceedings in bankruptcy. These were probative facts, not necessary to be averred in the complaint. The ultimate fact to be proved, and which was averred, was that the title was in the plaintiff, and it was unnecessary to-state in the complaint how he acquired it. In suits by or against executors or administrators, their representative character must be averred in pleading, as was held in Halleck v. Mixer (16 Cal. 474), and Barfield v. Price (40 Cal. 535" court="Cal." date_filed="1871-01-15" href="https://app.midpage.ai/document/barfield-v-price-5437327?utm_source=webapp" opinion_id="5437327">40 Cal. 535), for their right to sue and be sued, results by operation of law from the relation which they occupy toward the estate; and'this relation must be averred, and proved if denied. But in proceedings in bankruptcy, the legal title vests in the assignee under the assignment. .Whatever right the bankrupt had is assigned to and vests in the assignee, who thereby becomes, for the purpose of maintaining or defending suits, “possessed as of his own property” of the estate assigned to him. It is true he holds the title and the property when recovered in trust for certain purposes specified in the statute. But as between him and a stranger he holds the title, and may assert it in the same form .of action as though he owned the fee. This view of the law disposes also of the objection to the introduction in evidence of the proceedings in bankruptcy. If it was unnecessary to set them out in the com*451plaint, it was, of course, competent to prove them without. the averment. (Nor was it necessary to prove all the steps in the proceeding, inasmuch as section fourteen of the bankrupt law provides that a copy of the assignment shall be conclusive evidence of the assignee’s title, and in this case a copy of the assignment was put in evidence, /

The objections made to the depositions offered by the plaintiff are untenable.

Section five hundred and seventeen of the Practice Act authorizes the Court to shorten the time whenever “a written notice of a motion is necessary;” and under section four hundred and thirty-three a written notice is necessary of an application for a commission to take the deposition of a witness in another State. The order to show cause and the issuing of the commission were equivalent to an order shortening the time, and dispensed with the necessity of any other or further notice. The objection that it does not appear on the face of the commission that the person to whom it was addressed was a Judge or Justice of the Peace is frivolous. The presumption is, that on granting the commission, the Court, or officer who ordered it, performed his duty and directed it to a person who was qualified to execute it. Furthermore, the return to the commission shows that the person to-whom it was directed, and who executed it, was a District Judge.

We deem it unnecessary to notice the other points discussed by counsel.

Judgment affirmed.

Mr. Chief Justice Wallace did not express an opinion.

The foregoing' opinion was delivered at the April term, 1873, and a rehearing having been granted, the following opinion was delivered at the July term, 1874.

Rehearing

By the Court, Crockett, J.:

The argument on the rehearing has not convinced us that our former opinion ought to be modified. But the point is *452now made for the first time on the appeal, that a State Court had no jurisdiction of the action, and that the plaintiff’s remedy was by some appropriate proceeding in the United States District Court. The authorities are not uniform on the question whether an assignee in bankruptcy can maintain an action in a State Court to recover property disposed of by the bankrupt, in fraud of the Bankrupt Law. But we think the weight of authority, and supported by the better reasoning, maintains the jurisdiction of the State Courts, in that class of cases when the nature of the action is such that the proper relief can be administered in that forum. In this case, the action is trover in the usual form, and the judgment is for damages. The Court was competent to afford the necessary relief in an action of that nature, and properly entertained jurisdiction of the .cause. We deem it unnecessary to review the authorities on this point, but the question was expressly decided and the authorities collated, in the recent case of Gilbert v. Priest, 63 Barb. 339" court="N.Y. Sup. Ct." date_filed="1871-11-21" href="https://app.midpage.ai/document/gilbert-v-priest-5462534?utm_source=webapp" opinion_id="5462534">63 Barb. 339 (Nat. Bankruptcy Reg. 161). The reasoning in that case, in support of the jurisdiction of the State Courts, appears, to us not only to be conclusive, but to be in consonance with the weight of authority;

Judgment and order affirmed. Bemittitur forthwith.

Mr. Justice McKinstry did not express an opinion.