Langenour v. French

California Supreme Court Jul 1, 1867Published

Before: Sawyer

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Holding. The court held that the insolvency petition and notice were sufficient to establish jurisdiction, and that the requirement to prove losses under section thirty-six of the Insolvent Debtors Act is a matter of procedure rather than a jurisdictional prerequisite. Consequently, a discharge in insolvency cannot be attacked collaterally based on a failure to provide such proof.

Issues

Whether the insolvency petition and notice were sufficient to establish jurisdiction.
Whether the requirement to prove losses under section thirty-six of the Insolvent Debtors Act is jurisdictional.
Whether a discharge in insolvency can be attacked collaterally for failure to provide proof of losses.

Disposition. Affirmed; rehearing denied.

Quotations verified verbatim against the opinion

“Jurisdiction having been obtained, we do not think the evidence discloses facts sufficient to vitiate the judgment discharging the insolvent.”

“The discharge is attacked collaterally, and the fact required to be proved as to either class, is not jurisdictional.”

“The question arising under section thirty-six, as to whether the losses have actually occurred or not, involves matter of proof in the course of the exercise of a jurisdiction already acquired over the subject matter”

Synopsis

Sufficiency of Petition in Insolvency.—Where a, petition in insolvency avers t( That he [petitioner] is, and for about ten years last past has been, a citizen of Placer County, State of California, and has been mostly engaged in ranching and stock raising in said county :** held, that it substantially shows the jurisdictional fact of residence of the petitioner in said county for at least six months next preceding the time of filing said petition.

Sufficiency of Orders of1 Judge to Creditors and to publish Notice to Creditors.—Where the Judge receiving a petition of insolvency, in an order directed to the Clerk of his Court, ordered “ That the Clerk of this Court make publication of this notice in the Union Advocate, a newspaper published in said county, for a meeting of the creditors on the 29th day of November, 1862, at my office in Auburn, to contest said discharge as prayed for, and that said publication be made for at least thirty days preceding said date/* etc. : held, that in effect this was to combine orders for the meeting of the creditors and to publish the notice to them, as required by sections five and eight of the Insolvent Act.

Construction of Thirty-Sixth Section of Insolvent Act.—It is suggested, but not decided, because not necessary to the decision of the case, that the clause “ In case he [insolvent] should already have received the benefit of this Act during the next preceding year/* contained in the thirty-sixth section of the Insolvent Act, only applies to those parties the appraised value of whose property exhibited in the schedule does not amount to more than one third of their debts, and not to those who have “ no property to surrender** to the creditors.

Rule of Construction of Statutes.—It is a rule of construction of statutes that some effect, if possible, must be given to every word, and certainly to every distinct provision of the Act.

Jurisdictional Pacts in Insolvency Proceedings.—Where a petitioner in insolvency shows in his petition that he has no property to surrender, or, he having had the benefits of the Insolvent Act within o.ne year next preceding, the appraised value of his property exhibited in his schedule does not amount to more thah one third of his debts : held, that the fact to be proved by the affidavits of two disinterested and credible witnesses, that the insolvent has really experienced the losses by him stated, etc., as required by the thirty-sixth section of the Act, is not jurisdictional, but belongs to the procedure within the jurisdiction, and cannot arise until the final hearing, nor is it required that said affidavits should be filed or made part of the record.

Mode of Acquiring Jurisdiction in Insolvency Cases.—By the filing of the petition, containing a statement of the facts prescribed in sections two and three of the Insolvent Act, and the schedules, duly subscribed and verified, and by making the proper orders and giving the proper notice, the Court acquires jurisdiction of the subject matter and of the parties interested.

Opinion — Sawyer

By the Court, Sawyer, J.: Although the language used is not very exact or apt, wre think the petition substantially shows the jurisdictional facts. So, also, the order made by the Judge might in some respects have been better expressed; yet, the effect is, to combine an order for meeting of the creditors with an order to publish the notice. It necessarily imports that the creditors are required to meet on the day they are to be notified [98]to meet. Jurisdiction having been obtained, we do not think the evidence discloses facts sufficient to vitiate the judgment discharging the insolvent.

Judgment affirmed.

Opinion — Sawyer

By the Court, Sawyer, J., on petition for rehearing: The construction of section thirty-six of the Act for the relief of Insolvent Debtors is not free from difficulty. We are inclined to think, however, that the clause, “ in case he should already have received the benefit of this Act during the next year preceding,” only applies to those parties the appraised value of whose property, exhibited in the schedule, does not amount to more than one third of their debts, and not to those, who have “no property to surrender” to the creditors. In other words, that there are two classes of debtors, whom the Judge “ shall not admit to the benefit of this law, unless it be proved to the said Judge, by affidavit . o sworn and subscribed to by two credible and disinterested witnesses that the debtor has really experienced the losses by him stated,” etc., viz: those debtors who have no property to surrender to their creditors; and those who have received the benefit of the Act within a year next preceding, the appraised value of whose property exhibited in the schedule does not amount to more than one third of their debts. If this is not the construction, and the first clause of the section, as well as the second, is qualified by the clause, “ in case he should already have received the benefit of this Act during the year next preceding,” the said first clause has no office to perform; for, if a party has no property at all to surrender, the appraised value cannot possibly amount to more than one third of the debts, and the first clause must necessarily be included in the second; and as the second clause covers the whole ground, nothing is left to be provided for, or accomplished by the provision for the first class. It is a rule of construction, that some effect, if possi

Langenour v. French

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Synopsis

Opinion — Sawyer

Opinion — Sawyer

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