80 Cal. 472 | Cal. | 1889
This is an appeal from an order refusing to recall and set aside an execution. The judgment upon
There is no bill of exceptions, and the certificate of the judge as to what papers were used recites that “upon the motion to recall execution in the above-entitled action, the following papers were read and referred to.” Neither of these show that a motion was actually made, but if they did, the grounds upon which it was made nowhere appear. -
This being the state of the record, wé might properly affirm the order on the ground that no error is made apparent. The practice in this respect séeins to be extremely loose. Counsel seem to confound the notice of motion with the motion itself. The notice is not a motion, and should not be so treated. The careful practitioner will "either prepare and file his motion in writing,
It is also a matter of serious question whether any of the papers claimed to have been used on the alleged motion are properly authenticated.
As we have said, there is no bill of exceptions. The only authentication is by the certificate of the judge of the court below, at the close' of the transcript, as follows:—
“I, T. H. Bearden, judge of Department Seven of said court, hereby certify that upon the hearing of the motion to recall the execution in the above-entitled action, the following papers were read and referred to: The judgment roll in said action; adjudication of insolvency, stay of proceedings and order of publication of notice to creditors upon petition in insolvency of M. H. McDonald, filed August 4,1882, herein; certificate of final discharge of defendant, M. H. McDonald, in insolvency, filed January 30,1883, in the insolvency proceedings; affidavit of defendant, filed March 18, 1882; affidavit of Julia Herrlich, filed March 27, 1882; affidavit of Marguerite Beneux, filed March 27, 1882; and notice of motion to recall execution, filed January 26, 1887; the execution with its return and indorsements.
“ T. H. Bearden,
“Judge of said Court, Department Seven.
“ Dated March 17, 1887.”
Formerly it was expressly provided that on motion for a new trial affidavits used might be identified by indorsement by the judge or clerk at the time as having been read or referred to on.the hearing. (Stats. 1861,
Wo are of the opinion that without a statutory provision authorizing the authentication of copies of papers in some other way, the only proper way that they can be brought into the record and identified is by bill of exceptions. There are decisions of this court, however, in which it has been rather taken for granted that a certificate of the judge is sufficient. (Walsh v. Hutchings, 60 Cal. 228; Nash v. Harris, 57 Cal. 243; Larkin v. Larkin, 76 Cal. 323.) And in one case it was held in Department that as the statute prescribed no mode in which such papers should be authenticated, “ this court had power to prescribe by rule how such papers should be brought before it on appeal; and if it had power to make such a rule in advance, it had the power to ratify the mode adopted by the court below,” and upon this proposition was founded the decision in that case that the certificate of the judge of the court below was sufficient. (People v. Centinela Land Company, 56 Cal. 173.) But the code does provide, in express terms, how all papers, proceedings, and exceptions, not otherwise a part of the record, may be made such, viz., by a bill of exceptions or statement. (Code Civ. Proc., secs. 646, 649-651.) In case of an appeal from any decision made after judgment, a bill of exceptions is the proper, and in our opinion the only proper, mode of authentication. (Code Civ. Proc., sec. 651.)
But the respondent has not asked us to affirm the order on the ground that the question is not properly
The respondent contends that the discharge in insolvency, relied upon by the appellant, could not avail her on this motion, for the reason that she had such discharge before the judgment was rendered against her, and the same was not pleaded as a defense. This position would no doubt be unanswerable if it were true that the judgment was rendered after the discharge was given. But it does not so appear. The findings of the court were made and filed November 28, 1881, and the judgment bears the same date,but it is indorsed, “Recorded June 1886,” and the execution complained of recites the judgment as of the latter date. Now, conceding that the judgment could not have been enforced or appealed from until it was recorded, it does not follow that the defendant was at fault in not pleading her discharge. At the time of the trial and rendition of the judgment, she had not procured her discharge, and consequently could not have pleaded it, nor could she have pleaded or set up such discharge in any way, to make the same available between the rendition and recording of the judgment. Therefore, having had no opportunity to plead and prove her discharge at the trial, she cannot be held to have waived the right to assert it in the manner attempted in this motion.
It is further claimed by the respondent that the order of adjudication and certificate of discharge was not suffi
It is also claimed that the debt for which the judgment was recovered was one created “while acting in a fiduciary characterand that for that reason it was not discharged. Section 52 of the insolvency act provides: “No debt .created by fraud or embezzlement of .the debtor, or by his defalcations as a public officer, or while acting in a fiduciary character, shall be discharged under this act, but the debt may be proved, and the dividend thereon shall be a payment on account of said debt; and no discharge granted under this act shall release, discharge, or affect any person liable for the same debt for or with the debtor, either as partner, joint contractor, indorser, surety, or otherwise.’•
The question is, therefore,, whether the complaint on which the . judgment was recovered was for a debt contracted while, acting, in a fiduciary capacity. The complaint alleges, in substance, that the defendant was a dealer in mining stocks, but whether on her own account, or as a broker .or factor, does not appear; that the plaintiff employed the defendant to purchase mining
The prayer of the complaint was for the stock and dividends, or their value. In addition to the facts alleged in the complaint, the court found that the defendant had actually sold and disposed of the stock at a profit, and for the amount for which the judgment was rendered.
The appellant contends that this does not show that the debt was created by fraud or embezzlement or while acting in a fiduciary character, but that the defendant was shown to have been acting as a factor, and that such a debt is dischargeable in insolvency.-
There are authorities holding that where a party doing business as a factor had money in- his hands received in the course of his business, or has used the same for his own purposes, the claim of one dealing with him for the money due him was not within the provision in the federal bankrupt law, similar to that of our insolvency act, against the discharge of a debtor from fraudulent or fiduciary debts. (Chapman v. Forsyth, 2 How. 202; Zepenrink v. Card, 11 Fed. Rep. 295; Woolsey v. Cade, 15 Nat. Bank. Reg. 238; In re Smith, 18 Nat. Bank. Reg. 24; Upshur v. Brisese, 37 La. Ann. 138.)
So it is held that the claim relating to debts fraudulenly created was meant to apply only to cases of “ positive fraud or fraud in fact involving moral turpitude or intentional wrong, and not implied fraud or fraud in law which may exist without the imputation of bad faith or immorality.” (Neal v. Clark, 95 U. S. 704; Hennequin v. Clews, 111 U. S. 676; Strang v. Bradner, 114 U. S. 555.)
There was no direct allegation of fraud in the complaint in this case, nor was it averred that the defendant
The question presented here is an entirely different one. The allegations of the complaint present a case in which the plaintiff intrusted money to the defendant to buy mining stock for her. When purchased, the stock was the property of the plaintiff, and the defendant held it as a trustee for her, and upon demand she was legally bound to deliver the stock and account for the dividends she had received. She was simply an agent to buy property in the name of her principal, and stood in a fiduciary relation. Her refusal to deliver'the stock and the. sale of it by her was a conversion of the property, and the proceeds remained in her hands in trust for the plaintiff. (Matteson v. Kellogg, 15 Ill. 548.)
It is manifest that such an obligation could not be affected by a discharge in bankruptcy. (Clark v. Pinckney, 50 Barb. 226; Matteson v. Kellogg, 15 Ill. 548; Woolsey v. Cade, 15 Nat. Bank. Reg. 243; White v. Platt, 5 Denio, 271; Stoll v. King, 8 How. Pr. 298; Flagg v. Ely, 1 Edm. 206; Fulton v. Hammond, 11 Fed. Rep. 291.)
The distinction between this case and those relating to general factors is well expressed in Matteson v. Kellogg, 15 Ill. 549. In that case it was said: “Under this act,
It will be- found, upon, an examination of the cases holding that the-liability on. the part of a factor is discharged by bankruptcy, that they apply to cases where the factor has moneys-in, his hands growing, out of the: general business of such, factor, and not to a case like this, where money is given, him.with which to buy property for his principal: Beside, the cases relied upon by the appellant were decided, under the earlier bankrupt law, which differed materially from the latter statute on-that subject and from our- insolvency act. But we do. not regard this as material in- this.- case, as it is not within the decisions relied- upon, even if the language, of the statutes: were the same. There are. numerous cases holding that under the later bankrupt law the debt of a general factor for a balance in, his hands for sales made was not discharged, by his bankruptcy; but as we have concluded that-the appellant cannot,.under the allegations of the complaint,, be treated, as a factor, we need not cite them.. It is the law of this-state, however, that’ such a debt is not affected by a discharge-in bankruptcy. (Treadwell v. Holloway, 46 Cal. 547.)
The allegations of the complaint and findings of the court show that the appellant was acting in a fiduciary capacity, and that her appropriation of the stock and dividends were in bad- faith, and fraudulent.
For both these reasons her discharge in insolvency did not affect her liability*
Order affirmed..
Paterson, J., and Fox, J*, concurred..
Hearing in Bank denied.