Bennett v. His Creditors

Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring. This is an appeal from an order dismissing the proceedings in insolvency instituted by the appellant. The appellant filed his petition in insolvency in the Court below on the fifteenth day of January, 1861, and the usual orders were made for a meeting of the creditors and for a stay of proceedings against the insolvent. Notice was duly published, an assignee was afterwards appointed by the Court, and George C. Johnson appeared and filed an opposition to the discharge upon various grounds. The insolvent filed his answer to this opposition, denying all the charges, and the issues thus presented were duly tried by a jury, who returned a verdict in favor of the insolvent. The opposing creditor then moved to dismiss the proceedings, which motion was granted by the Court below, and the insolvent appeals therefrom to this Court, alleging that the Court erred in dismissing the ease. It appears that the motion to dismiss was made on the ground that the Court had never acquired jurisdiction of the proceedings, and this seems to have been predicated upon the alleged insufficiency of the schedule of losses and of the insolvent’s property, attached to the petition, which, it is claimed, do not set forth the items with sufficient particularity. We think that these objections and defects are not sufficient to authorize the action of the Court in dismissing the case. The objections urged affect the sufficiency of the papers as pleadings, but not [42] the question of jurisdiction. As pleadings, any defect or omission might be corrected by amendment. It is true, proceedings in insolvency are founded upon the statute, and the Courts in these cases exercise a special jurisdiction. In such cases the general rule is that the requirements of the statute must be strictly pursued. In order to give the Court jurisdiction of the case the insolvent must file a petition, setting forth substantially such a state of facts as 'will bring the case within the provisions of the statute, and show that he is entitled to the relief therein provided. The petition, which stands in the place of a complaint, and the notice, which stands in the place of a summons, when duly published, give the Court jurisdiction over the subject matter and the parties. (Brewster v. Ludekins, 19 Cal. 162.) If the petition and schedule are insufficient or defective, they may be objected to and amended, if desired, like other pleadings, and the Court, after having acquired jurisdiction, can take such action respecting them as the rules of law authorize. In the present ease, if the schedules do not set forth the items with sufficient particularity, the proper remedy is by motion to require the insolvent to state them properly, and not by motion to dismiss for want of jurisdiction. The respondent in his brief, filed since the case was submitted, objects that the transcript does not contain the whole record. It is not urged that it is insufficient to show the action of the Court in which the alleged error was committed. This objection, if a valid one, should, under the rules of this Court, have been made before the submission of the case ; and then the appellant, if necessary, could have applied for an order requiring any omitted papers to be certified to this Court. The judgment of the Court below, dismissing the case, is reversed, and the cause is remanded for further proceedings.