Demartin v. Demartin

Belcher, C. C. This is an appeal from an order granting an insolvent debtor a discharge from his debts.

On the twenty-second day of October, 1887, the respondent, Louis Demartin, commenced proceedings in voluntary insolvency, and was adjudged to be an insolvent debtor. On the 4th of February, following, he applied to the court for a discharge from his debts, and the proper notice was given to his creditors to appear and show cause why a discharge should not be granted. The appellants, two of the creditors, appeared and opposed a discharge.

As grounds of opposition they specified,— 1. That the respondent had sworn falsely in the affidavit annexed to his petition, schedule, and inventory in this, that he stated, in the schedule of his debts and liabilities, his indebtedness to the appellants to be $4,588.40, when in fact it was $5,588.40; and in this, that he wholly omitted from the inventory of his' assets an indebtedness of $172.23 then due him from certain parties in the city of San Francisco. 2. That respondent had been guilty of fraud, contrary to the true intent of the Insolvent [78]Act, in this, that on the twenty-ninth day of September, 1887, he filed and caused to be recorded a declaration of homestead on a tract of land then owned by him, which was of the value of fifteen thousand dollars, and on the eleventh day of November, 1887, the court, against the objections of.appellants, and without hearing any evidence, set the whole tract apart to him as a homestead, from which order an appeal had been taken to and was still pending in the supreme court.

The respondent filed an answer to the specifications of objection, admitting the errors set up in the first specification, and averring that they arose from mistake and inadvertence, and denying that the property selected by him as a homestead and set apart as such by the court, as stated in the second specification, was of any greater value at the time of the selection than five thousand dollars. He also interposed a general demurrer to the second specification, and the appellants interposed a like demurrer to the answer. The court sustained the demurrer of respondent and overruled that of appellants. The case was then tried, and as a result the court found that respondent was indebted to appellants in the sum of $5,588.40, instead of $4,588.40, as set forth in his schedule, but “ that such discrepancy occurred by mistake, and was not made with intent to defraud any of the creditors of the said insolvent.” The court also found that at the time of filing the petition and inventory there was owing to the insolvent the sum of $172.23, which was not included in the inventory, but “that the same was omitted therefrom through inadvertence and mistake, and not with any intent to defraud any of the creditors of the said insolvent,” and that the insolvent had since received and paid the same to the assignee.