31 Cal. 167 | Cal. | 1866
This is an action upon a promissory note executed by the defendants jointly. Katz alone was served with process, and he answered, setting up a discharge from the note under proceedings in insolvency. It appeared from the evidence offered by Katz in support of this defense, that his petition in insolvency was filed January 26th, 1863, and that the Judge on the same day made an order for the creditors to appear and show cause, etc., and for the Clerk to issue a notice calling upon the creditors to appear and show cause before the Judge at chambers, on Saturday, the 28th of February, 1863, at eleven o’clock a. m., why the prayer of the alleged insolvent should not be granted. The order further directed that the notice should be published at least once a week, for four successive weeks, in a newspaper published and printed in the county. It further appeared from the affidavit offered in evidence, that the publication of the notice was commenced on the 31st of January and ended on the 28th of February, 1863. The plaintiff objected to the evidence on the ground that thirty days time had not been given for the appearance of the creditors from the date of the first publication. None of the creditors appeared on the day fixed in the notice, nor thereafter. The objection was sustained by the Court, and the defendant excepted to the ruling.
The evidence was properly excluded. Under the Act relating to insolvent debtors, as amended in 1860, (Acts 1860, p. 283,) creditors are entitled to at least thirty days from the date of the first publication of the notice in which to appear
Judgment affirmed.