34 Cal. 92 | Cal. | 1867
Lead Opinion
Although the language used is not very exact or apt, wre think the petition substantially shows the jurisdictional facts. So, also, the order made by the Judge might in some respects have been better expressed; yet, the effect is, to combine an order for meeting of the creditors with an order to publish the notice. It necessarily imports that the creditors are required to meet on the day they are to be notified
Judgment affirmed.
Rehearing
The construction of section thirty-six of the Act for the relief of Insolvent Debtors is not free from difficulty. We are inclined to think, however, that the clause, “ in case he should already have received the benefit of this Act during the next year preceding,” only applies to those parties the appraised value of whose property, exhibited in the schedule, does not amount to more than one third of their debts, and not to those, who have “no property to surrender” to the creditors. In other words, that there are two classes of debtors, whom the Judge “ shall not admit to the benefit of this law, unless it be proved to the said Judge, by affidavit . o sworn and subscribed to by two credible and disinterested witnesses that the debtor has really experienced the losses by him stated,” etc., viz: those debtors who have no property to surrender to their creditors; and those who have received the benefit of the Act within a year next preceding, the appraised value of whose property exhibited in the schedule does not amount to more than one third of their debts. If this is not the construction, and the first clause of the section, as well as the second, is qualified by the clause, “ in case he should already have received the benefit of this Act during the year next preceding,” the said first clause has no office to perform; for, if a party has no property at all to surrender, the appraised value cannot possibly amount to more than one third of the debts, and the first clause must necessarily be included in the second; and as the second clause covers the whole ground, nothing is left to be provided for, or accomplished by the provision for the first class. It is a rule of construction, that some effect, if possi
But under the view we take, it is unnecessary to finally determine the question.
The discharge is attacked collaterally, and the fact required to be proved as to either class, is not jurisdictional. By the filing of the petition, containing a statement of the facts prescribed in sections two and three, and the schedules duly subscribed and verified, and by making the proper order and giving the proper notice, the Court acquires jurisdiction of the subject matter, and of the parties interested. The rest relates to the procedure within the jurisdiction. The Court is then authorized to hear and determine all questions arising in the progress of the case. The question arising under section thirty-six, as to whether the losses have actually occurred or not, involves matter of proof in the course of the exercise of a jurisdiction already acquired over the subject matter, not matter of averment as a basis for acquiring jurisdiction. It is a question that cannot arise until the final hearing. Till then the party cannot be called on for this proof. If the Judge should grant a discharge without proof it would be error, for which the judgment would be reversed on appeal. A Court has no legal authority to render judgment for a money demand in an ordinary suit, where the claim is disputed, without proof; but it has authority to try the issue, and if judgment should be rendered, it would be valid until reversed. The same is true with reference to the point in question. But if the fact be jurisdictional, the judgment itself recites, “that the requirements of said Act for the relief of insolvent debtors and protection of creditors, and all orders- of the Court herein, have, in every respect, been fully complied with and performed by said petitioner.” One of the requirements of the Act is, that he shall furnish the proof, by affidavit sworn and subscribed to by two creditable and disinterested witnesses, that he really experienced the losses, etc. The Act does not say that their affidavits should be filed, or in any manner made record. Those
Rehearing denied.
Sanderson, J., concurring specially:
I concur in the order, but dissent from the opinion so far as it leaves open the construction of the thirty-sixth section. The construction suggested, but not finally adopted, is, in my judgment, the true construction, beyond a doubt.