Meyer v. Kohlman

8 Cal. 44 | Cal. | 1857

Terry, J., delivered the opinion of the Court—Burnett, J., concurring.

This is an action upon a promissory note. The defendants pleaded in bar to the action a discharge from their debts by the judgment of the District Court of Hevada county, under the insolvent laws of the State, and the question involved in the record is as to the validity of this discharge.

It appears from the record of the proceedings in insolvency, that the defendants, who were partners, made a joint application for the benefit of the act; that the schedule, affidavits, and other papers, were filed as the joint act of the partners. In the case of Cohen et al. v. Barrett & Sherwood, (5 Cal. R., 195,) it was held that an application under the Insolvent Law was not stricti juris, a proceeding either at law or equity, but a special remedy, created by statute, and that, as to such proceedings, the District Courts are inferior Courts, and must pursue the statute strictly; that, in such cases, the District Court must first ascertain that the person, the subject-matter, and the relief sought, are within the statute, before its jurisdiction will attach ; in other words, in order to vest the Court with jurisdiction, the petitioner must show, on the face of his application, such a state of facts as will entitle him to a discharge.

In the case under consideration, the application was wholly insufficient:

1. Because it was made in the joint name of the partners, for which there is no authority in the act.

2. Because it does not show a surrender on the part of the defendants, of all the property owned by them, or either of them. The petition, schedule, and affidavit, show a surrender of joint property only, and, for aught that appeared, each may have been in possession of individual property, more than sufficient to satisfy the demands against them.

It follows that the proceedings in bankruptcy, being without jurisdiction, and void, constitute no bar to the action.

Judgment reversed, and cause remanded.