25 N.H. 299 | Superior Court of New Hampshire | 1852
The district courts of the United States, though of limited jurisdiction, are not inferior courts, in the technical sense of the term. If jurisdiction do not appear upon their proceedings, their judgments will be reversed on error or appeal; but they are not nullities, which may be disregarded in a collateral proceeding. McCormick v. Sullivant, 10 Wheat. 192. In this respect the district courts stand on the same footing as courts of general jurisdiction ; and the authority of such courts is always to be presumed, until the
A court of general jurisdiction, however, may have special and summary powers, wholly derived from statutes, not exercised according to the course of the common law, and which do not belong to it as a court of general jurisdiction. In such cases, its decisions must be regarded and treated like those of courts of limited and special jurisdiction. Embury v. Conner, 3 Coms. 322; Huntington v. Charlotte, 15 Vt. Rep. 46.
The jurisdiction in such cases, both as to the subject matter of the judgment, and as to the persons to be affected by it, must appear by the record ; and every thing will be presumed to be without the jurisdiction, which does not distinctly appear to be within it. Peacock v. Bill, 1 Wms. Saund. 73, and notes; Ladbroke v. James, Willes 199; Sollers v. Lawrence, Willes 416; Mills v. Martin, 19 Johns. 7; Thomas v. Robinson, 3 Wend. 267; Kempis lessee v. Kennedy, 5 Cra. 173; Wheeler v. Cowen, 3 Wend. 311; Barnes v. Harris, 3 Barb. S. C. 603; People v. Koeber, 7 Hill 39; Bank v. Treat, 6 Shep. 340; Barritt v. Crane, 16 Vt. 246.
The powers of the district courts in relation to the subject of bankruptcy, have been regarded, by courts of high character, as falling within the class of special and summary powers; so that in such cases the jurisdiction must appear, or be distinctly shown. Thus it has been held, that the residence of the bankrupt within the district where his application for the benefit of the bankrupt act was made, must be shown, his indebtedness, and that his debts are not of a fiduciary character; and it must appear that the proceedings were commenced by a petition, setting forth those facts, accompanied by a proper schedule of property and a list of creditors. Sackett v. Andross, 5 Hill. 327; Stephen
Ordinarily, when it appears that proceedings have been regularly commenced before a court of competent jurisdiction, the principle applies, that however irregular or erroneous the proceedings may be, they are valid until they are reversed or set aside, on motion, if irregular, or on error, or appeal, if erroneous. They are in no ease to be regarded as nullities, nor to be impeached by plea or proof in any collateral proceeding. Gorrill v. Whittier, 3 N. H. Rep. 265; Smith v. Knowlton, 11 N. H. Rep. 191; Wesson v. Chamberlain, 3 Coms. 331; Embury v. Conner, 3 Coms. 511; Newman v. Cincinnati, 18 Ohio 323; Smith v. Keene, 26 Maine (6 Shep.) 411; Callahan, v. Griswold, 9 Mo. 784; Wight v. Varnum, 1 Doug. 384; Clark v. Holmes, 1 Doug. 390; Peirson v. Catlin, 18 Vt. (3 Wash.) 77; Cook v. Darling, 18 Pick. 393; Kittridge v. Emerson, 15 N. H. Rep. 262.
This principle does not intend to exclude any inquiry relative to the jurisdiction of the court, since a judgment rendered by a court which has not jurisdiction, is entirely void. Gorrill v. Whittier, 3 N. H. Rep. 265; Borden v. Fitch, 15 Johns. 141; Bissell v. Briggs, 9 Mass. Rep. 464; Barrett v. Crane, 16 Vt. Rep. 246; Westervelt v. Lewis, 2 McLean 511; Swiggert v. Harper, 4 Scam. 464; Boynton v. Foster, 7 Met. 415; Bigelow v. Stearns, 19 Johns. 39; Smith v. Knowtton, 11 N. H. Rep. 191; Latham v. Edgerton, 9 Cow. 227; Hill v. Robertson, 1 Strob. 1.
Any fact, upon which the jurisdiction depends, may be denied, unless, perhaps, in the case where the objection has been taken in the court whose jurisdiction is questioned, and it has been made the subject of an express decision of the court. Shumway v. Stillman, 4 Cow. 292; Walker v. Mosely, 5 Denio 102; Noyes v. Butler, 6 Barb. S. C. 613; Hickey v. Stuart, 3 How. U. S. 750.
Any fact may be alleged or proved, which goes to take
If, however, a party who has not been served with process, or who has not been duly notified, shall appear and answer to the action without objection on that account, the objection to the jurisdiction is forever waived. Noyes v. Butler, 6 Barb. S. C. 613; Malone v. Clark, 2 Hill 657.
In most cases, where it appears that the action is properly commenced in a proper court, and the jurisdiction has thus once been acquired by that court, it has authority to proceed until the case is concluded. Evarts v. Gove, 10 Vt. Rep. 161; Scammon v. Ogden, 1 Scam. 137.
But this is not universally true, since there are cases where the jurisdiction may be affected by the course of the proceedings in the case itself. A familiar instance of this kind is the case of an action of trespass to real estate before a justice of the peace. If a plea of title is there interposed, the jurisdiction of the justice is arrested, and any judgment rendered by him afterwards, except of nonsuit, is void. Pritchard v. Atkinson, 4 N. H. Rep. 291.
The proceedings in bankruptcy are peculiar, and different from any which are known at common law. They furnish an instance in which the measure of jurisdiction varies at different stages of the proceedings. In the earlier steps, they are entirely ex parte. The petition is presented by the bankrupt himself. In cases, like the present, of voluntary bankruptcy, the decree of bankruptcy, the appointment of an
All the preliminary proceedings are like the attachment of property upon a writ, merely calculated to secure the debtor’s property for the benefit of the creditors; but the jurisdiction of the court as to the other parties, whose rights are to be affected by the final decision, depends in the one case upon the due service of process upon such parties, or upon the due notice required by the law, instead of such service, and in the other, upon the notices required to be given by the bankrupt law. In the latter case, the jurisdiction of the court to entertain the proceedings in their early stages being shown, it will be presumed that such notices have been regularly given, until the contrary appears.
But as the validity of the discharge and certificate of the bankrupt depend upon the question, whether the court had acquired jurisdiction of the person of the creditor by the notice prescribed by law, that fact may be well denied by a proper plea; and if that plea is supported by the evidence, the whole proceedings will fail, unless the effect of the omission can be in some way obviated. Each separate creditor
The denial of notice in the replication demurred to in this case is as follows: “ at the time of the petition, &e., and of the discharge, &c., the plaintiff was a creditor, &c., and his residence known, and no notice to appear, &c., was served upon him, &c., or addressed to him by letter, &c., as required, &c.” The sufficiency of this plea must of course depend upon the bankrupt law, the statute of 1841. By the provisions of this act, notice is required to be given in two stages of the proceeding; first upon the petition to be declared a bankrupt, the only effect of which would be to give the authority to the court to decree the petitioner to be a bankrupt, appoint an assignee, &c.; secondly, upon the petition for a. discharge. By section 4, “ every bankrupt who shall * * * surrender his property, &c., and shall * * * obey the orders of the court, &e., shall be entitled to a full discharge from all his debts, to be decreed and allowed by the court, &c., and a certificate thereof granted to him by said court accordingly, upon his petition filed for that purpose, such certificate and discharge not to be granted until ninety days from the decree of bankruptcy, nor until after seventy days’ notice in some public newspaper designated by such court, to all creditors who have proved their debts, and other persons in interest, to appear, &c., and show cause why such discharge and certificate should not be granted, &c. Provided, that in all cases where the residence of the creditor is known, a service on him, personally, or by letter addressed to him at his known usual place of residence, shall be prescribed by the court, as in their discretion shall seem proper, having regard to the distance at which the creditor resides from such court. * * And such discharge and certificate, when duly granted, shall in all
This statute makes it essential that notice should be given to the creditors and other persons interested, to come in and show cause why a discharge should not be granted ; first, by seventy days’ notice in some public newspaper, designated by the court; and secondly, by personal service on the creditor, or by letter, as the court shall direct. The language, though neither neat nor accurate, is too clear to be mistaken. “ Such discharge and certificate not to be, (shall not be,) granted until after seventy days’ • notice in some newspaper, &e. Provided, also, that in all cases where the residence of the creditor is known, a service on him, personally or by letter, shall be prescribed by the court,” and of course given accordingly. It would seem that no one could question the position, that the court was absolutely without authority, that is, without jurisdiction, because entirely prohibited, to decree a discharge until such notice was given. And we can see no ground for supposing that one of these notices is not as much required, and as indispensable, as the other; or that the one can be deemed a substitute for the other.
Upon this view, the fact of due and proper notice to the plaintiff, designed to be denied by this replication, was essential to give the court any authority to act upon the plaintiff’s rights, and was a proper matter to be put in issue, because, if well pleaded, and the plea supported by the proper proof, it was a complete and perfect answer to the defence set up by the defendant.
It seems to have been the intention to make the certificate of discharge, of itself, evidence conclusive in favor of the bankrupt, unless impeached for fraud or concealment. There are such provisions in the English bankrupt acts of most
The language of the bankrupt act gives rise to another question, not connected with that we have been considering, but essential to be considered in determining the point raised in this case. It is the question whether, supposing the plea well pleaded of want of due notice of the petition for a discharge, to be valid, the plaintiff has in this replication shown himself entitled to the notice, of the want of which he complains. The certificate and discharge is not to be granted until after seventy days’ notice in some newspaper, &c., to all creditors who have proved their debts, and other persons in interest, Sfc. Provided, that in all cases where the residence of “ the creditor ” is known, a service on him personally or by letter, &e., shall be prescribed, &c. It is apparent, from a reference to the rule of the district court on this subject, (Rules in Bankruptcy, No. 12,) that the judges of the circuit court, under whose revision those rules were adopted, gave a narrow construction to the words “ the creditor,” understanding them to, apply not to creditors generally, who were known to be such to the' bankrupt, and whose residences were known to him, nor to the creditors whose names and residences are required, by the first section of the act, to be stated in a list accompanying the petition to be declared a bankrupt, but to those creditors only spoken of in the preceding part of the section, who have proved their debts. That rule, after directing the manner of notice by publication, proceeds, “ and also where the residence of any creditor who has proved his debt or other claim is known, notice thereof shall be given by a service on him, personally or by
If this is the true construction of the bankrupt act, the replication in this case is bad, because though it alleges that the plaintiff was a creditor, and that his residence was known, it does not allege that he had proved his debt. As if the statute were to be construed as requiring notice, personally or by letter, only where the name of the creditor insisting on the want of notice, was stated in the list of creditors annexed to the petition to be declared a bankrupt, the replication would be defective, because it does not show that the plaintiff’s name was inserted in that list.
On general principles, the law ought to require actual and personal notice to be given to every person whose rights are to be affected by a decision ; and the want of such notice ought to defeat the operation of such judgment or decree, so far as it affects the rights of persons not notified, wherever it is reasonably practicable to give such notice. But it will not do to require that such actual notice should be brought home to every party in interest. In many cases it is absolutely impracticable, and in others it is difficult to give such notices, without such delays and expenses as would tend to defeat the entire objects of the proceeding. It is, therefore, well settled that various modes of notifying parties of legal proceedings may be valid and effectual within the jurisdiction of the government which prescribes them ; and then, though they may fall entirely short of actual notice, all parties will be bound by them. Such are most of the notices prescribed by the laws of this State, in cases arising ¿n the courts of
From the Annual Digest for 1848, page 44, Tit. Bankrupt 31, it seems that this question has arisen in Missouri, and it was there decided that failure to give notice to a creditor will not vitiate a certificate of discharge. We are not aware of the grounds of this decision. Skelton v. Pease, 10 Mo. 473. And from 4 U. S. Digest 268, Bankrupt 71, it appears that it was decided in South Carolina that the omission, by a petitioner for the benefit of the bankrupt
Judgment on demurrer for the defendant.