Holladay v. Hare

California Supreme Court May 14, 1886 No. No. 9221Published

Before: McKinstry

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Holding. The court held that a judgment against a bankrupt defendant is valid when limited to property attached more than four months prior to bankruptcy proceedings, and that the inclusion of language regarding sureties in the judgment is harmless surplusage.

Issues

Whether a judgment against a bankrupt defendant is valid if limited to property attached prior to bankruptcy proceedings.
Whether the inclusion of language in a judgment regarding the enforcement of an undertaking against sureties constitutes reversible error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The plaintiff here was entitled to a judgment in form either general or limited to the property attached.”

“There is no error in the judgment of the Superior Court so far as it provides for its satisfaction out of the property attached.”

Synopsis

Bankruptcy—Discharge — Liability or Property Attached—Judg-, ment. —The action was commenced on the 16th of May, 1876, to recover the value of professional services rendered by the plaintiff to the defendant. On the following day, certain money belonging to the defendant, on deposit in the Bank of California, was levied upon under an attachment regularly issued in the action. On the 17th of June, 1876, the defendant procured the release of the property attached by giving the undertaking required by section 555 of the Code of Civil Procedure. Pending the action, on the 15th of March, 1877, the defendant instituted proceedings for his discharge in bankruptcy, and on the 27th of September, 1878, obtained a certificate discharging Mm from all his debts existing on the 15th of March, 1877. The defendant set up Ms discharge as a bar to the action in a supplemental answer. Judgment was rendered in favor of the plaintiff as stated in the opinion. Held, that the judgment was proper, as the lien of the attachment, which accrued more than four months prior to the commencement of the bankruptcy proceedings, was not affected by the discharge.

Id. — Held further, that the portion of the judgment purporting to authorize a proceeding on the undertaking against the sureties was surplusage.

McKinstry, J. The judgment appealed from is as follows:—

“It is therefore now, by the consideration of the court, hereby ordered, adjudged, and decreed that the plaintiff herein, Samuel W. Holladay, do have and recover from the defendant herein, Charles Hare, the sum of three thousand and seventy-eight dollars and fifty cents ($3,078.50), with costs of this action, hereby taxed at $133. That the said sums of money so adjudged hereby to the plaintiff be enforced or satisfied out of the prop-" erty attached in this action by the sheriff, on or about the sixteenth day of May, 1876, as appears by his return on file herein, if the said property shall be redelivered for that purpose; otherwise, by proceedings on the undertaking of the sureties, Daniel Dodge, P. H. Cooty, and H. C. Wright, filed herein June 17, 1876, on behalf of the defendant, Charles Hare, and given for the discharge of the writ of attachment and the release of the property taken thereunder, as appears by the papers on file in this cause.”

[517]The prosecution of the action to judgment had not been stayed by any order of the bankruptcy court. But the effect of the discharge of the defendant as a bankrupt was to prohibit a judgment which could be made out of any property of defendant other than that which was attached (more than four months before the commencement of the bankruptcy proceedings). (U. S. R. S., sec. 5044.) The plaintiff here was entitled to a judgment in form either general or limited to the property attached. The state law authorized a judgment enforceable, except to the extent that its enforcement was limited by the paramount authority of the law of the United States, adopted to carry out the bankruptcy jurisdiction conferred by the constitution on the courts of the United States. The appellant here cannot complain that the judgment provided for its collection only out of the property attached; that is, of a judgment collectible out of part instead of the whole of his property. Such would be the only mode in which the judgment could be satisfied if it had been general in its form.

In Myers v. Mott, 29 Cal. 359, it was held that a general judgment could not be rendered against an administrator, because the statutes provide for the form of the judgment in such case; and that the death of a defendant operated a dissolution of an attachment, because the statutes provide that a decedent’s estate shall be distributed pro rata, etc.

There is nothing in that decision to indicate that, if the law relating to the estates of deceased persons had provided that property attached prior to the death should be made applicable to a claim thus secured, the law in that respect would not be recognized as valid.

Holladay v. Hare

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