People ex rel. Sturgis v. Shepard

This was an original proceeding commenced in the Supreme Court. On the 7th day of July, 1856, relator' recovered a judgment in the District Court of the Seventh Judicial District, Contra Costa County, against George F. Worth.

On the 21st day of January, 1858, the insolvent (Worth) filed his petition in the District Court of the Seventh District, in Contra Costa County, praying to be discharged from bis debts, under the Insolvent Act of 1852-. After publication of notice to creditors, and on the 2d day of March, 1858, (the day appointed in said order for the meeting of creditors,) no creditor having appeared, the Court made and signed a formal order by which the Sheriff was authorized to act as assignee, and by which, also, the assets, both real and personal, of the insolvent, appearing to be exempt by law from process, were set apart for his and his family’s use. On the same day an entry was made by the Clerk upon the “minutes” of the Court to the effect that the insolvent was ordered to be discharged from his debts.

In January, 1863, relator, a judgment creditor described in insolvent’s schedule, applied to. the Court to dismiss the proceedings upon the alleged ground of want of diligence in prosecuting the same to final judgment. This was refused. In February, 1863, relator applied to the Court to have execution issued on his judgment described in insolvent’s schedule, as one of the debts from which he sought discharge. This also was refused. On February 23d, 1863, relator’s application for leave to bring action to revive his judgment was granted. Such action was brought, and in defense, and as a bar thereto, insolvent pleaded and on trial introduced the entire record of his insolvency proceedings as constituting and presenting a judgment of discharge from the debt sued on. The Court held the record to constitute ho defense, that the order or decree of discharge was “void,” in being made ten days prior to the time prescribed by the twentieth section of the Insolvent Act for: opposition 'by creditors ; and upon this ground rendered judgment, in January, 1864, for the plaintiff.

In July, 1864, under the amended Constitution, and by virtue of the Act for the “ Transfer of Civil Cases,” (See Laws 1863-4, p. 3, Sec. 3,) these proceedings in insolvency, as still “pending and undetermined,” were transferred to the proper County Court, which thereupon taking jurisdiction as provided in such cases, at its next regular term in September, 1864, after appearance and opposition thereto made by relator, rendered in behalf of insolvent a full, formal, and final judgment or decree of discharge from (as by its terms expressed) all Ms debts contracted after the passage of the Act of 1852, and duly set forth and named in his schedules filed in 1858.