Friedlander v. Loucks

34 Cal. 18 | Cal. | 1867

By the Court, Shafter, J.:

It is insisted that the discharge of the defendent in insol-” vency is null and void as to the plaintiff’s note, for the reason that the note was not described in the schedule of debts, nor was the plaintiff named as a creditor therein. The defendant’s proceedings in insolvency were under the Insolvency Act of 1850, as amended in 1860. By the amendment to the twenty-fourth section, it was provided that, “ the release and discharge provided for in this section shall not apply to 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 case, the discharge and release authorized by the section shall embrace all his debts and liabilities, notwithstanding they may have been imperfectly described or not described at all.” (Acts of 1860, p. 284.) In this collateral attack upon the judgment discharging the petitioner “from all his debts, whether imperfectly described, or not described at all, which were contracted before the surrender of his estate,” etc., no inquiry can be entertained, except as to the jurisdiction of the Court. (Kohlman v. Wright, 6 Cal. 230.) The jurisdictional facts are, first: a petition setting forth substantially such a state of facts as will bring the case within the provisions of the statute and show that the petitioner is entitled to the relief therein provided for; and second, due publication of notice to creditors. (Brewster v. Ludekins, 19 Cal. 162; Bennett v. His Creditors, 22 Cal. 40.) The petition of Loucks, in insolvency, in the particulars wherein it is claimed to be defective, adopts the very language of the twenty-fourth section, as amended in 1860, and contains an averment, not a mere recital, as the appellant’s counsel assumes, that the petitioner “ has described all his debts to the best of his knowledge and recollection,” and that he “has given, in schedule ‘ B,’ the names of his creditors, as near as he can now state them.”

The order for the appearance of creditors, the order of notice and the publication thereof, are free, in our judgment, from jurisdictional or other defects. The notice is to all creditors, without distinction, to appear and show cause why , the prayer of the petitioner should hot be granted and the petitioner be discharged from his debts and liabilities, without exception. The plaintiff’s debt was within the scope of the petition, by averments couched in statute language, and the plaintiff, as such creditor, was before the Court through a notice as comprehensive, and at the same time as explicit, as the language of the petition.

The questions made here, relate to movements within the jurisdiction rather than the jurisdiction itself, and if available anywhere should have been raised in the proceeding itself.

Judgment affirmed.

Mr. Justice Rhodes expressed no opinion.