William C. Tompkins & Co. ex rel. Oakey v. Bennett

3 Tex. 36 | Tex. | 1848

Lead Opinion

Opinion of the court by

Mr. Justice Lipscomb.

The first point presented for our consideration by the plaintiffs in error, in which it is supposed by them that the court below erred, is in admitting the record of the discharge of Hall in bankruptcy, under the plea. The evidence objected to is an entire and full record of the proceedings of the district court •of the United States for the district of Louisiana, on the petition of William Hall to be declared a bankrupt. Every thing appears to have been done in strict accordance with the requisitions of the bankrupt law. The petition of Hall was filed the 9th Pebruary, 1843, and the decree of the court was entered on the 16th of June following, discharging the petitioner from all of his debts owing by him at the time of his petition to be declared a bankrupt: And it was further ordered, that the clerk duly certify the decree under the seal of the court, and deliver the same to the bankrupt, when demanded. The record then shows all the further proceedings required by the law, for the disposition of the assets of the bankrupt, by the assignee, and it is, at the conclusion, authenticated by the following certificate, to wit:

“ Clerk’s Office, United States District Court, 1 for the District of Louisiana. [

“ I, Neidler It. Jennings, clerk of the court aforesaid, do hereby certify that the foregoing twenty pages contain a full and complete transcript of all the proceedings, pleadings and documents on file, and of record, in the bankruptcy of William Hall, number 710, on the docket of said court. I further certify that the interlineations contained in pages 6, 11, 12, 15, 19 and 20, are true and exact copies of the interlineations in • the original papers aforesaid; that they are of the same number of words, and are placed in the same order as in said

[l. s.]

original papers. In testimony whereof, I have hereunto signed my name, and affixed the seal of the said court, at New Orleans, this fourth day of March, A. D. 1848.

“N. R. Jennings, Clerk.”

“I, Theodore H. McOaleb, judge of the district court of the United States for the district of Louisiana, do hereby certify that N. R. Jennings, who signed the foregoing certificate, was and is the clerk of the district court of the United States for the district of Louisiana; that faith and credit are due and ought to be given to his attestation as such, and that the above is in due form. As witness my hand and seal at New Orleans, this fourth day of March, A. D. 1848.

“Theo. II. McOaleb.” [l. s.]

I do not understand from the record, that the objection taken in the court below, to the admissibility of the record, went to the mode of its authentication. But it was contended that the decree and certificate, as required by the act of congress to make full proof of tbe discharge, is not presented in the evidence offered. The part of the act relating to the degree of credence that shall be given to the discharge and certificate, will be found in the 4th section of the bankrupt law [5 vol. Statutes at Large, 444], and is in the following words: “ And such discharge and certificate, when duly granted, shall in all courts of justice be deemed a full and complete discharge of all debts, contracts and other engagements of such bankrupt, which are provable under this act, and shall be, and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever, and the same shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall he irmpeached for some fraud,, or wilful concealment by him of his property or rights of property, as aforesaid, contrary to the provisions of this act, on prior reasonable notice, specifying i/n writing such fraud or concealment.” From the provision of the act just cited, I think there can be no doubt that the decree of discharge, attested by the clerk, would be conclusive evidence. But, to my mind, it is equally clear that the fact, of the matters and proceedings in the case, being presented between the decree of the discharge arid the clerk’s certificate, cannot impair the conclusive character of such certificate. It is true, it would be more portable and convenient without having it connected with the balance of the record of the proceedings; but, at most, the part not absolutely required to be presented would be only surplusage. It must be borne in mind, that the law prescribes no particular form in which the certificate of the clerk shall be framed, and this may be the usual form of authenticating the most important fact, to wit: that the court had decreed the discharge, agreeably to the prayer of the petitioner. The certificate presented applies to all the proceedings •in the particular case, and the decree, being a part of those proceedings, is embraced. The judge certifies that the clerk’s certificate is in due form.

I can entertain no doubt but the record shows, fully and conclusively, the discharge of the defendant’s intestate, as far as it was competent for tbe court to decree a discharge. I have said that I did not understand the objection went to the authentication of the record, because* if it was so intended, it should have-been more explicit. I am not to be understood, however, as expressing any doubt as to the sufficiency of the authentication. It is true, if the e /idence had been offered before the annexation of this state to the United States, the authentication would! not have been sufficient to authorize it to have been read in evidence. [See Phillips vs. Lyon, 1 vol. Tex. Rep. 392; Wellborn vs. Carr, id. 469.] I will, however, return to the point made by the,plaintiff’s counsel, that a distinct certificate was required to notice one argument urged in his brief. He supposes “ the decree of the judge might have been made just as it was, and yet the decree afterwards attacked in the same court for fraud, or because the bankrupt had not complied with all the lawful orders of the court, and the certificate, consequently, withheld, and never delivered.” Now, such a presumption is repugnant to both the law-and the record. After the decree, discharging the bankrupt, the court had nothing more to do with him. All that the law required of the bankrupit had been complied with and adjudicated, before the decree, and in that court the time had passed for charging him with fraud. Again, had there been any proceedings directing the decree of discharge to be suspended, and, consequently, the certificate, it would have been shown by the record that was given in evidence. But, to my reading of the bankrupt law, the court, sitting in bankruptcy, had no power or control over the certificate of the clerk, after the decree declaring the petitioner a bankrupt and decreeing his discharge.

I shall proceed to consider the next objection taken by the plaintiffs in error, that the court erred in refusing the evidence to impeach the discharge on the ground of fraud. It will be seen by the statement of facts, that the evidence offered by the plaintiff, and ruled out by the court, was this: ‘‘ The plaintiff offered to prove, by a witness on the stand, that Hall owned real estate in Galveston, before the time of his discharge in bankruptcy, as set up by the defendant, and continued to own and enjoy the same subsequent to said discharge.” If the object of the evidence was to prove fraud in obtaining the discharge, it would not have conduced to that end if it had been received, because we cannot presume fraud. (It must he proven actually, Or be a conclusion from facts that will not admit of any other conclusion, consistently with fair dealing.) That he owned property in Galveston previous to his discharge in bank- ■ ruptcy was not a matter of controversy, and proved nothing, because his schedule, rendered and filed on his application to-the court in New Orleans, showed that he did own such property, and it was included with his assets in the hands of the assignee. This was acknowledged, and needed not additional proof. The record read in evidence showed that it had been sold for the benefit of his creditors, and that it had been purchased by the party who claims, in this suit, to hold the equitable interest in the same sued for. The evidence could not have proved fraud at the time the certificate was obtained, because the bankrupt had rendered in the Galveston property in his schedule, and.if he afterwards set up a fraudulent claim for the property, such subsequent fraud could not affect his discharge. Again, as this suit is brought by citizens of the state of Louisiana, on what is alleged by them to be a debt due to them, and the proceedings in bankruptcy formed a judicial proceeding of their own forum, I have no doubt that whatever restrictions may be placed by courts, extra-territorial, on bankrupt laws, that'the parties in this suit were bound by the law. If so, the discharge could only be impeached for fraud, in the way provided by the law itself. This, it has been shown by the citation from the 4th section of the bankrupt law, is “ on prior, reasonable notice, specifying in writing such fraud or concealment” If the plaintiff had wished to impeach the discharge on the ground of fraud or concealment, the foundation should have been laid by alleging and specifying such fraud. This would have been notice to the defendant. There does not appear to have been but two points of law reserved for the consideration of this court. First, the admission of the record from the district court of the United States for the district of Louisiana, objected to by the plaintiffs, and the objection, overruled by the court; and I believe there was no error in so ruling. The second, the refusal to- admit the evidence offered by the plaintiff, in which I have endeavored to show there was no error. The evidence of the bankrupt’s residence in Galveston, his having voted there, and conducted himself as a citizen of the place, went to the jury without any instruction from the court. If the plaintiffs believed it to be of any consequence to their rights, they should have asked the court to have charged the jury on the law applicable to such a state of facts. Not having done so, nor moved for a new trial, even if the state of facts proven would have authorized a different verdict, it cannot now be revised. But, I apprehend, it would not have avoided the bankrupt’s discharge if it had been admitted that he resided in Texas up to the time of his going over to New Orleans, and taking up a temporary residence there, for the purpose of seeking the benefit of the bankrupt law of the United States. It may have been the honest interpretation he put on the law, that he had aright to do so, and if wrong in his construction, the presumption is that his application would have been rejected by the court to which he had applied. Whether a temporary residence, or a permanent domicile, gave the right to the applicant, were questions that peculiarly belonged to that court, and, therefore, everything done on the part of the bankrupt is. perfectly consistent with honesty and fairness.

On the trial in the court below, the judge was not called upon to decide on the legal effect of a foreign bankrupt law, out of the limits of its own territory. Whether it could affect real or personal property, one or both, belonging to the bankrupt in other countries, were questions not made, and therefore not responded to by the judge. Nor was he called on to decide on any conflict of claim between a citizen óf Texas and one claiming under the bankrupt’s assignment in the United States. Any discussion of those questions, now, would be traveling out of the record; and, in my opinion', violating the appropriate duty of an appellate tribunal. I mention this, because much, perhaps the most, of the plaintiff’s argument ■and authorities refer to those questions.

I consider it improper to decide those questions, for the reasons assigned. Besides, the decision of a court on a point not presented by the record, ought not to he entitled to the weight ■of an adjudged question, and perhaps would mislead the profession on those subjects.

On the whole, I believe the judgment ought to be affirmed, and, in this opinion, Chief Justice Hemphill concurs. The judgment of the court below is affirmed.

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Dissenting Opinion

Mr. Justiee Wheelem

dissented from the opinion of the court as pronounced, but stated that he was not prepared to say that the judgment ought not to be affirmed. He was inclined to think it ought to be, for the reason that it was not proved at the trial that the account sued on was presented to the administrator previous to the institution of the suit. The fact, having been put in issue by the general denial of all the allegations in the petition, should have been proved, to entitle the plaintiffs to recover. It was expressly so decided by the supreme court of the republic, in the case of Cummings’ Adm’r vs. Jones. [Dallam, 531.] And that decision was recognized and affirmed in the subsequent case of Daily vs. Chevallier. [Ibid. 555.]