Hanscom v. Tower
Before: Cope
Synopsis
An appeal from an order refusing a new trial brings up the whole record, and on such appeal error may be assigned on the judgment roll, even though there be no appeal from the final judgment.
The answer to a suit on a note set up defendant’s discharge in insolvency. Plaintiff demurred to the answer, on the ground that it did not allege that the note was described, set forth, or included in defendant’s schedule: Held, that the demurrer was not well taken; that, under section fifty-nine of the Practice Act, it was sufficient to allege in the answer that a judgment had been duly rendered discharging defendant from the demand sued on ; and that whether the demand were sufficiently described was matter of evidence to be determined at the trial by inspection of the record.
Where an insolvent’s schedule shows that one of his creditors resides out of this State at the time the proceedings in insolvency are instituted, an attorney must be appointed to represent such creditor, or the discharge will, as to him, be coram non judice; and the fact of such appointment, is a jurisdictional fact, must appear in the record, and cannot be shown by evidence aliunde.
Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring.
The appeal from the order refusing a new trial brings up the whole record, and there is nothing in the point that error cannot be assigned upon the judgment roll. The objections to the answer are met by the fifty-ninth section of the Practice Act, which reads as follows: “ In pleading a judgment, or other determination of a Court or officer of especial jurisdiction, it shall not be necessary to state the facts conferring jurisdiction ; but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction.” It was sufficient, under this section, to allege that a judgment had been duly rendered discharging the defendant from the demand sued upon, and whether this demand was sufficiently described was a matter of evidence, to be determined at the trial upon the inspection of the record. But whether, as a matter of fact, the description in this case was sufficient, it is unnecessary to inquire; for there is another conclusive reason why the discharge cannot be relied upon as against the plaintiff. When the proceedings in insolvency were instituted, he was a resident of the State of Maine, and that fact was set forth by the defendant in the schedule of his indebtedness. The statute provides that “ if there be any creditors residing without the limits of this State, the Judge shall appoint an attorney to [522]represent them; ” and a compliance with this provision is necessary to give validity to the discharge, as against such creditors. The fact of the appointment must appear in the record, and cannot be shown by evidence aliunde. It is a jurisdictional matter, and whatever is essential to the jurisdiction in such cases must appear upon the face of the proceedings. There is nothing in this case to show that an attorney was appointed to represent the plaintiff, and as he did not voluntarily appear and submit himself to the jurisdiction, the discharge, as to him, must be regarded as coram non judice.
. Judgment reversed, and cause remanded for a new trial.
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