Santa Clara Valley Mill & Lumber Co. v. Rich

HARRISON, J.

Jacob Rich was adjudicated an insolvent by the superior court of Santa Clara county June 4, 1896, and in

[495]

due time thereafter filed his petition to be discharged from his debts. The Santa Clara Valley Mill and Lumber Company, a corporation, is one of the creditors of said insolvent, and for the purpose of opposing his discharge filed certain specifications— twelve in number—of the grounds of its opposition, in each of which it set forth facts upon which it claimed that the petition should be denied. Upon the motion of the insolvent the court struck out two of these specifications and a portion of another, upon the ground that they were irrelevant. The insolvent also filed a demurrer to the opposition upon the ground that it did not state facts sufficient to prevent him from being entitled to his discharge, and in his demurrer he also pointed out and specified portions of three of the specifications which he claimed were ambiguous and uncertain, and demurred to them upon those grounds. After hearing argument upon the demurrer, the court ordered that the demurrer “be sustained only upon the grounds mentioned in paragraphs 4 to

12,

both inclusive, of said demurrer,” and giving to the creditor leave to amend, if it so desired. The paragraphs of the demurrer referred to in the order are those in which certain averments contained in the specifications of opposition, numbered 5, 6, and 10, are demurred to upon the ground of ambiguity and uncertainty. The court made no order with reference to the paragraphs of the demurrer which refer to the entire opposition. ¡KTo amendment having been filed by the creditor, the court, upon the motion of the insolvent, made an order

ex parte

dismissing the opposition, and thereafter made an order discharging the insolvent from his debts. From these orders the creditor has appealed.

Section 53 of the Insolvent Act (Stats. 1895, p. 148) enumerates various grounds for refusing a discharge of the insolvent from his debts, and section 54 provides the mode in which these grounds, or any one of them, may be brought to the attention of the court by declaring that “any creditor opposing the discharge of a debtor shall file specifications in writing of the grounds of his opposition; and after the debtor has filed and served his answer thereto, which pleadings shall be verified, the court shall try the issue or issues raised, with or without a jury, according to the practice provided by law in civil actions.”