Hastings v. Cunningham

Temple, J., delivered the opinion of the Court:

This is an action for a partition, and the only question involved in this appeal is whether Sharp or Moon has succeeded to the interest formerly held by Samuel W. Haight in the premises sought to be partitioned. Sharp claims under certain proceedings in insolvency instituted by Haight; while Moon claims under a judgment and execution sale.

The insolvency proceedings were had in the Fourth District Court. The order to show cause, and also the usual restraining order, was made on the 26th of July, 1855. The petition and schedules were presented to and received by the Judge on the 27th, as appears by his certificate indorsed upon them, and they were filed on the 28th of the same month. The return day mentioned in the order to show cause was the 3d of September, at which time, the order having been duly published, the Sheriff was appointed assignee. The assignment was made September 12th, 1855. The judgment under which Moon claims was rendered August 8th, was docketed September 4th and the sale was had on the 24th day of December of the same year. The judgment below was in favor of Sharp, and this is an appeal from an order granting a new trial.

The first question which arises is, whether the Court obtained jurisdiction in the matter of the insolvency of Haight so as to authorize the assignment of his property. The record discloses that the order to show cause and the order [142]staying proceedings were made one day before the petition was presented to the Judge, and two days before it was filed. , A valid order to show cause, and a publication under it, is a necessary step in these proceedings, without which no valid assignment can be made. (McDonald v. Katz, 31 Cal. 167.) The Act confers upon an unfortunate debtor a valuable privilege, to which, without a compliance with the statute, he has no right. It also deprives the creditor of important rights; for, by the terms of his contract, he not only may look to the property of the debtor for payment, but to his accumulations also, for the period of the Statute of Limitations.

In the case of Hahn v. Kelly (34 Cal. 391), cited by respondent’s counsel, Mr. Justice Sanderson criticised the use of the phrase “proceeding according to the course of the common law,” as affecting the rule as to what intendments will be indulged in favor of the validity of judicial proceedings. But whether that phrase be meaningless or not, there is a manifest difference between a statute which, like the Practice Act, merely prescribes a mode of procedure and a statute which also creates a right or confers a privilege upon complying with its terms. The Practice Act is entirely remedial. It does not affect the rights of the parties as to the subject-matter of the controversy. It merely provides the mode in which redress may be had when these rights .have been invaded. The Insolvent Act creates the right or privilege which is sought in the proceedings under it, and the record must show a substantial compliance with its requirements as conditions precedent.