82 Cal. 219 | Cal. | 1889
On the eighteenth day of February, 1885, the respondent, C. T. McEachran, filed his petition in the superior court of Napa County, praying that he be adjudged an insolvent debtor. On the same day he was adjudged insolvent, and in March following, an assignee of his estate was appointed. On the 31st of October, 1885, the appellant, William Matheson, filed his claim against the estate of the insolvent, and therein set up that the insolvent was indebted to him in the sum of $3,351.11, upon a judgment rendered in the superior court of Napa County on the twenty-sixth day of October, 1883.
On the 27th of March, 1386, the respondent filed in court his petition for a discharge from his debts. The appellant opposed the discharge, and filed specifications in writing of the grounds of his opposition, and thereupon the respondent made and filed the oath required by section 49 of the insolvent act to be taken and subscribed before any discharge can be granted. Thereafter, on the 16th of June, 1886, the appellant filed amended specifications of the grounds of his opposition to the discharge. The specifications set up that from the year 1870 to the 26th of October, 1883, a partnership existed between respondent and appellant; that on the day last named this partnership was dissolved by a decree of the superior court of Napa County; that the court found and determined that respondent was indebted to appellant in a sum named for money advanced and delivered to respondent by appellant for their joint benefit, and which respondent fraudulently misapplied and appropriated to his own use, and that respondent was also indebted to appellant in another sum named for money received by respondent in the partnership business, and which sum of right belonged to appellant as his share
The respondent filed an answer to the objections of appellant to his discharge, and therein fully denied all the charges of fraud made against him.
The matter came on for trial before the court without a jury, on the twenty-second day of April, 1887, and the appellant offered in evidence the judgment roll in the case before referred to. The respondent objected to the offered evidence, on the ground that it was irrelevant, immaterial, and incompetent, and the coui't sustained the objection. The appellant then offered in evidence a deed made by respondent to his wife under date of June 28, 1882, and purpoi’ting to convey to her, in consideration of love and affection, the undivided one half, and all the right, title, and interest of respondent,
At the conclusion of the trial the court granted the prayer of respondent, and gave him a certificate of discharge from his debts, in the language provided in section 51 of the insolvent act. The appeal is from this order, and the action of the court in excluding the three items of evidence above mentioned constitutes the principal grounds urged for a reversal.
1. The action, the judgment roll in which was offered in evidence, was commenced by the appellant against the respondent in 1883 to dissolve a partnership existing between the parties, and for an accounting. The court found, in substance, that in the year 1870 the parties entered into a partnership for the purpose of purchasing certain lands in Napa County, and improving and cultivating the same for their joint benefit; that the plaintiff was to advance the money necessary to purchase, improve, and-cultivate the lands while they should remain unproductive, and the defendant was to give his whole time, labor, and skill in clearing, improving, and cultivating the same; that in pursuance of the partnership agreement the defendant purchased the lands,' and went into possession thereof, and that the partnership business was continued and carried on until some time in the year 1882; that the plaintiff advanced to defendant for partnership purposes, and upon his representations that it was all necessary therefor, the sum of $1,299 more than was necessary, and more than was in fact used by defendant for or on account of the partnership, and that defendant fraudulently kept and appropriated this last-named sum to his own use; that during the seven
Section 49 of the insolvent act specifies the grounds upon which a creditor may oppose the discharge of an insolvent debtor, and section 52 declares what debts shall not be discharged. The last-mentioned section reads as follows: “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,” etc.
It is argued for respondent that appellant’s judgment did not constitute a debt which was “ excepted from the operation of a discharge in insolvency,” and that it therefore furnished no ground for opposition. And in support of this position counsel cite Hennequin v. Clews, 77 N. Y. 427; 33 Am. Rep. 641; Palmer v. Hussey, 87 N. Y. 303; Neal v. Clark, 95 U. S. 704; Hennequin v. Clews, 111 U. S. 676.
We do not consider it necessary to decide this point; for conceding that the judgment debt was excepted from the operation of the discharge, still we do not think it furnished any good ground for opposition.
This reasoning seems to us correct, and to be entirely applicable to the proceedings under our insolvent act. There was therefore no error in excluding the judgment roll.
3. It is urged that the -decision is against law, and should be reversed, because it purports to discharge the petitioner from all debts,-and does not except from its operation debts contracted in fraud. But the order referred to does not purport to discharge the insolvent from any debts. It is simply .an order that the application be granted. The final-order granting the discharge is in the language of section 51, and it expressly excepts “such debts, if any,.as are by said insolvent laws excepted from the operation of a discharge in insolvency.”
4. The appellant makes the point that the oath required by the last-clause-of section 49 to be taken and subscribed by an insolvent before any discharge is granted was made in May, 1886, while the discharge was not granted until April, 1887. It is said that the statute intended that the oath should be taken at the time of granting the discharge.
A sufficient answrnr to this point is, that when respondent’s oath was offered in evidence, no objection was made to it by appellant, and the objection comes now too late. If objection had been made at the proper time, respond
We advise that the order appealed from be affirmed.
Hayne, C., and Foote, C., concurred.
For the reasons given in the foregoing opinion, the order appealed from is affirmed.