16 Barb. 319 | N.Y. Sup. Ct. | 1853
As to some of the objections made to the discharge of the defendant, it is sufficient to say that they are founded on defects which are not jurisdictional, but which, had the favor been asked on the day of showing cause, would have been allowed to be amended. There is a large class of defects in the proceedings of an insolvent, which are waived by a failure to object to them at the proper time. In truth the very reason for requiring notice of the day and place of showing cause against the granting of the discharge, is that objections may be made, and brought to the notice of the officer, before the discharge is granted, that he may pass on them and deny the
But there is one defect in the proceedings which, without particularly examining any of the others, seems to us material. A due publication of notice of the hearing was necessary to give the officer jurisdiction over the proceedings, and to authorize the granting of a discharge which should bar the claims of creditors. In order to waive an objection a party must have the notice which the law prescribes, of the time and place for making it; and the officer must have proof of the service of this notice. This was a case where notice was required to be published in a newspaper in the city of Hew-York; and the only proof of the publication of that notice was furnished by an affidavit, purporting to be sworn to before a master in chancery. By the 12th section of the act concerning voluntary assignments, <fcc. (2 R. S. 18, § 12,) it is expressly enacted “ that before any other proceeding be had, the officer shall require proof of the publication of the notice as herein directed.” The supreme court have held in two cases, (9 John. 75; 11 Id. 175,) that when the statute requires a magistrate to receive “proof” or “satisfactory proof” of a fact, legal proof is meant; and in one of the cases cited, an action of trespass was sustained against the magistrate, on the ground that the judgment was void for the violation of this principle. The proceeding at bar is void and without jurisdiction if the discharge was granted without due proof of the publication of notice of the order to show cause, on very familiar principles. It is necessary that a party should have a day in court, or opportunity to show cause against a proceeding that is to affect his rights, or the proceeding will be utterly void. (Borden v. Fitch, 15 John. 121. Bigelow v. Stearns, 19 Id. 39. Mills v. Martin, Id. 7.) Ho other principle can be tolerated, in a free government. That a man’s personal rights, or rights of property,
If this be so, then the affidavit purporting to be sworn to before a master in chancery, not being legal proof according to the principle laid down in 9th John. 75, and 11th Id. 175,
Gridley, W. F. Allen, Hubbard and Pratt, Justices.]
Judgment affirmed.