Cerf v. Oaks

McKinstry, J: This is an action for the recovery of certain goods and chattels, or their value. The plaintiff had judgment, and defendant’s motion for a new trial being denied, this appeal was taken.

From the findings of the Court it appears that by virtue of an attachment issued out of the District Court, in a suit wherein Schaeffer & Co. were plaintiffs, and one Bennett was defendant, the defendant herein, who was Sheriff of San Luis Obispo County, on the 16th day of January, 1879, seized the personal property in controversy in this action; that thereafter, on the same day, said Bennett filed in the County Court of said county a petition as an insolvent under the act of May 4th, 1852, and its amendments; that the Judge of the County Court, on said 16th day of January, made an order staying all proceedings against said insolvent, and directed the clerk to give notice of a meeting of creditors, to be held March 3d, 1879, which notice was published, and that the first publication of said notice was more- than forty days prior to the day fixed for the meeting; that on the 4th day of February, 1879, the proceedings in insolvency not having been brought to the notice of said District Court, the said [134]District Court rendered a judgment in favor of Schaeffer & Co., plaintiffs, against Bennett, defendant, and on the 8th day of February, 1879, execution was issued thereon directed to said Sheriff, by virtue of which, said Sheriff, the defendant herein, on the 5th day of March, 1879, sold said property at auction to the highest bidder; that said Schaeffer & Co. were duly notified of the pendency of said insolvency proceedings and of all the steps taken therein from the filing of the petition; that on the 8th day of March, 1879, the Judge of the said County Court made an order, reciting the fact of the order of January 16th, fixing March 3d for the meeting of creditors, and that the first publication of the notice thereunder was more than forty days before said March 3d, and directed the creditors to meet on the 16th day of April, 1879, and show cause, etc., all proceedings in the mean time to be stayed; that on the said 16th day of April, the said creditors met and selected Cerf, the plaintiff herein, to be the assignee, and said Bennett was adjudged to be an insolvent.

The Court can acquire jurisdiction to discharge an insolvent from his debts only by due publication of the notice to creditors—certainly so unless all the creditors appear on the day fixed for their meeting. (McDonald v. Katz, 31 Cal. 167; Langenour v. French, 34 id. 92; Flint v. Wilson, 36 id. 24.) But the jurisdiction to make the orders which precede publication of the notice to creditors attaches when the petition and schedule are filed. The order to stay proceedings was, therefore, valid. It operated by its own force, and the law did not require any notice of it to the Sheriff. (Taffts v. Manlove, 14 Cal. 47.)