Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 33 Cal. 530 at 540.
Appeal from the District Court, Eleventh Judicial District, El Dorado County.
The prayer of the appellant's petition in insolvency was as follows: " Wherefore your petitioner prays to make a cession of his estate, and to be discharged from his debts in pursuance of the provisions of said [Insolvent] Act."
COUNSEL:
Section twenty-one of the Insolvent Act provides that " before any other proceedings be had," the " Court shall require proof of the notice as herein provided," which rendered, simply says, that the Court shall require proof that the notice mentioned in section eight has been published as the Judge has ordered, before any proceedings be had. As to what proof, or how it shall be proved, the statute is silent; any legal proof, or evidence of the fact, is sufficient. When the statute appoints a particular mode, that mode must be followed; when no mode is prescribed, then the general mode of proving facts is to be followed. Any person knowing the fact could make the proof.
It is notnecessary to state in the petition the residence for six months in the county by the petitioner. Section two of the Insolvent Act prescribes what the petition of the insolvent shall contain. " He shall petition the Judge having original jurisdiction within the place of his domicil or usual residence, which petition shall briefly state the circumstances which compel him to surrender his property, and shall conclude with a prayer to make a cession of his estate, and to be discharged," etc. The petition in this case states all that the statute requires that a petition shall state. This proof in respect to residence may be made by any of the common law modes of proof, either by parol or in writing. (28 Barb. 416; 11 Johns. 224; 12 Wend. 102.) In Courts of general jurisdiction, (County Courts being one,) when nothing to the contrary appears on the record, it will be intended, in support of the judgment had, jurisdiction over the person. When the record does not show that the Court had not acquired jurisdiction, the intendments in favor of the judgment will raise the presumption in favor of jurisdiction over the person, so that it cannot be attacked collaterally. Whena Court is a superior Court of general jurisdiction, the presumption will be, that nothing shall be intended to be out of its jurisdiction that is not shown or intended to be so. (2 Hare & Wallace's Am. Lead. Cases, 733; Earl of Derby v. Duke of Athol, 1 Ves. 203; 3 Peters, 374, marg. pp. 204-6.) In Ex parte Watkins, 1 Greenl. 723, Sec. 548, note 2, the author says: " Where the jurisdiction of an inferior Court depends on a fact which such Court must necessarily and directly decide, its decision is taken as conclusive evidence of the fact." (Britian v. Kinnaird, 1 B. & B. 432; Steele v. Smith, 12 Pick. 582; 7 Law. R. 461.) The fact of six months residence by appellant in the county was necessarily and directly decided by the County Court before making any order or decree in the case.
Geo. G. Blanchard, for Appellant.
S. & G. E. Williams, for Respondent.
There was no affidavit of publication of notice to creditors--the affidavit made in the case not being made by one of the persons mentioned in the statute. The affidavit made is sufficient under the thirty-third section of the Practice Act, but it is claimed that the section does not apply in insolvency cases. In 29 Cal. 415, this Court decided that insolvency cases are like all other cases over which the County Court has original jurisdiction, and that the provisions of the Practice Act in regard to new trials apply. The notice to creditors is in the nature of a summons, and there exists no good reason why, if the provisions of the Practice Act in regard to new trials apply in these cases, the other provision in regard to the proof of publication should not apply.
The objection that the proceedings do not show jurisdiction, because it does not appear that the plaintiff resided in the county six months next preceding the filing of the petition, is based on the second section of the Insolvent Law. That the residence is a jurisdictional fact has been decided to be so under the New York statute, which differs from ours in this: that it expressly provides that the proof of residence shall be made at the time of presenting the petition. (See 1 Cowen, 316; 3 Wendell, 329; 20 Johnson, 210.) It is claimed, however, that if this be a jurisdictional fact, it might have been shown on the trial of the cause. Although we think that it could not be done, yet concede it, and the ruling of the Court was correct. The defendantoffered the record in evidence. Upon the face of it, it did not show jurisdiction. If this could be remedied by oral testimony, then the defendant was bound to accompany the offer of the record with an offer to prove this jurisdictional fact, and failing to do it, the Court was bound to rule out the record.
The fact that the plaintiff held the notes in suit at the time of the filing of the petition in insolvency, and that his name is not mentioned in connection with these notes, renders the description fatally defective and void. (McAllister v. Strode , 7 Cal. 428; Jackson v. Atwill , 9 Cal. 477.)
JUDGES: Currey, C. J. Mr. Justice Shafter did not express an opinion.
OPINION
CURREY, Judge
By the Court, Sawyer, C. J., on petition for rehearing:
The authorities cited to the first point discussed in the petition for rehearing contain nothing in conflict with anything said in the opinion in this case. In those cases the questions arose on appeals from the judgment in the same proceedings, and were presented by, and determined on, the pleadings. When the objection is taken and passed upon, and exception taken in the course of the proceeding, and it does not appear in the record on appeal that the objection was obviated in any mode, it will not be presumed, on appeal from the judgment, that the respondent has obviated the objection in some other way. In the present case the attack upon the judgment is made collaterally, and, if it is legally competent for the petitioner to inform the Court that he had been a resident of the county for a period of six months prior to his application for a discharge, in any manner other than by a statement of the fact in the petition itself, then, since the County Court is a Court of record, in a collateral proceeding, it will be presumed, in support of the judgment, that the Court satisfied itself of the fact of residence in some appropriate mode before taking jurisdiction of the proceedings. The second section prescribes what the petition shall state; but does not say that he shall state the fact of residence, and we find nothing in the statute requiring it to be therein stated. In the Probate Act the fifty-eighth section formerly provided that " the petition must state the facts essential to give the Court jurisdiction of the case," and, as the residence of the defendant, at the time of his death in the county, is a jurisdictional fact, it was properly held under he provision that this fact must be stated in the petition for letters of administration. But it was afterwards provided, that if the jurisdictional facts existed and were not fully set forth in the petition, but were afterwards proved in the course of administration, the judgment should not be void for want of such jurisdictional averment. In the Act concerning insolvent debtors, as we have seen, while the facts to be stated in the petition are prescribed, it is not provided that the fact of residence in the county shall be there stated. We do not perceive, therefore, why it may not be legally competent to inform the Court of this fact in some other mode. This being so, and the Court being a superior Court in a collateral proceeding, we must presume that the fact of the required residence was duly ascertained.
As we suggested in Wilson v. His Creditors , 32 Cal. 407, but without holding such averments absolutely essential, it would be much more orderly to state the fact of residence in the petition.
We find nothing more in the petition requiring further notice.
[The opinion on petition for rehearing was not rendered until the April Term, 1868, when Mr. Justice Sawyer had become Chief Justice of the Court.--Rep.]
Rehearing Denied.