Merritt v. Glidden, No. 2,067

No. 2,067 | Cal. | Jul 1, 1870

Rhodes, C. J.,

delivered the opinion of the Court :

The complaint is sufficient. It accords substantially with the. forms given in Chittv on Pleading; and, according to the authorities cited by the plaintiff, it would be regarded as sufficient at common law. Should it be considered defective, under the rules of the Code, the defect is in matter of form and not of substance—not in the matter alleged, but in the manner in which it is alleged. Such defect can be reached only by demurrer, on the seventh ground mentioned in Section 40—that the complaint is unintelligible or uncertain.

After the cause was submitted to this Court, on briefs to be filed, the counsel for the defendants, who are the appellants, filed in this Court an adjudication of the bankruptcy of the defendants, rendered by the Register of the District Court of the United States for the District of California, after the appeal was taken. The purpose is, to have the proceedings in this Court stayed, until the question of the defendant’s discharge shall be determined.

The Bankrupt Act (14 U. S. Statutes, p. 526, Sec. 21), provides that “no creditor whose debt is provable under this Act, shall be allowed to prosecute to final judgment, any suit at law, or in equity therefor, against the bankrupt, until the question of the debtor’s discharge shall have been determined; and any such suit or proceeding, shall, upon the application of the bankrupt, be stayed to await the determination of the Court in Bankruptcy, on the question of the discharge, provided there be no unreasonable delay on the part of the bankrupt, in endeavoring to obtain his discharge. ”

" No authorities are'cited by counsel, which throw'any light on the question, whether an adjudication of the bankruptcy of a party, against whom a' judgment had been rendered, would' have the effect to stay proceedings on an appeal, which had been taken by him from the judgment.

' The judgment- from which the appeal is taken is, in our opinion, final, in the sense of the statute. It was not, we think, the purpose of the statute, to suspend the right of the plaintiff to maintain in the appellate Court, the correctness and validity of a judgment, from which the bankrupt might choose to take an appeal, until the determination of the question of the discharge of the bankrupt. To give the statute that construction, would place it in the power of the bankrupt to delay, and thus defeat, remedies to which the plaintiff was entitled, and that, too, in cases where the appeal would be dismissed on motion of the plaintiff.

Judgment affirmed.