121 Wis. 575 | Wis. | 1904
Tbe plaintiff attacks tbe discharge in insolvency collaterally, and this it may unquestionably do if tbe lack of jurisdiction appears upon tbe face of tbe record. O’Malley v. Fricke, 104 Wis. 280, 80 N. W. 436. Tbe^question is, Does it so appear ? Tbe plaintiff claims that lack of jurisdiction appears in two ways: first, because tbe written order fixing the date for the bearing of tbe petition and for creditors to show cause contained no date in fact, but directed that cause be shown “on tbe ——• day of September, 1897and, second, because tbe record shows that proof of tbe publication and mailing of tbe required notices to creditors was not filed until October 6, 1897, being six days after tbe discharge itself was granted.
Tbe proceedings by an insolvent debtor to obtain a discharge under cb. 179, Stats. 1898, are strictly adversary proceedings, as much so in fact as are actions at law. Tbe creditors whose claims are to be barred must be made parties to tbe proceedings and jurisdiction of them obtained in the way laid down by tbe statute or their rights will not be affected. This is self-evident. Tbe statute (sec. 4285, Stats. 1898) provides that upon tbe filing of tbe insolvent’s petition and schedules tbe court shall make an order requiring tbe creditors to show cause why a discharge should not bo granted, which order “shall also fix a day in tbe same or next ensuing term for tbe hearing thereof.” There can be no question but that tbe fixing of the day is jurisdictional. As tbe written order on file contains a blank at this point, tbe contention is that it is conclusively shown that no day was fixed. But tbe written order is not necessarily tbe decision of tbe court, but generally is merely evidence thereof. Tbo announcement from tbe bench is tbe order or judgment in
Proceeding to the next question, we find it more serious. Sec. 4288, Stats. 1898, provides that on the day fixed in thorder to show cause or any subsequent day that the court may aj>point, the proofs or allegations of the parties shall be heard by the court, “but before any other proceeding shall be had proof shall be made of the service and publication of the notices provided for in the preceding sections.” The preceding sections require that notice of the order to show cause aforesaid shall be published in a newspaper at the seat of government and in a newspaper published in the county where the application was made, and that a copy shall be served personally or by mail on each creditor. The record shows that none of the proofs of publication or mailing were filed until October 6, 1897, and that the order of discharge was granted September 30, 1897. We regard this as fatal to
By the Gourk. — Judgment affirmed.