Flint v. Wilson

The question is as to the validity of the discharge in insolvency of the defendant, Wilson, from the debts upon which the recovery in this action was had. The record of the discharge was excluded by the Court, on objection by plaintiffs on the ground that the proceedings are void upon their face. The same record was in question in Naglee v. Wilson, decided at the October Term, 1867, and we held the discharge valid, for the reasons given in Langenour v. French, 34 Cal. 92, decided but a short time before. We think the order of July 13th, 1865, indorsed on the petition and signed by the Judge, although not very well expressed, combines substantially an order for the meeting of creditors and a direction to the Clerk to issue and publish a notice to the creditors. The same question was made and determined in the two cases before decided, and we see no good reason for taking a different view of the question now from that before adopted. The only question raised, not already determined in those cases, is, that the statute, so far as it authorizes the County Judge, as distinguished from the Court, to act in the preliminary stages of the proceeding, is unconstitutional, and that the acts of the Judge at chambers are therefore void. The Constitution, as amended, provides that “the County Courts shall have original jurisdiction * * * of proceedings in insolvency.” (Art. VI, See. 8.) The petition is filed in the Court, after the proper indorsements are made, and becomes a record of the Court, like a complaint in any other case.

The final order discharging the insolvent was made in open Court. The order for the meeting of the creditors and directing the notice to be issued is only a preliminary proceeding, and serves as process to bring the creditors into Court. We see no reason for holding that the Legislature has no constitutional power to authorize this mode of bringing the parties into Court, or of authorizing the Clerk alone, *28if it should see fit to do so, to issue the notice, upon filing the petition, without an order of Court, that would not as well apply to the issuing of a summons by the Clerk in vacation upon a complaint filed in the District Court. The latter is no more the act of the Court than the former. The jurisdiction of the District Courts is conferred in similar language, and the same distinction is taken between the Courts and their Judges, with reference to the writ of habeas corpus, as that found in the provisions conferring jurisdiction upon County Courts. (Constitution, Art. YI, Secs. 6 and 8.) It is rather late in the day to maintain that the powers exercised by the Judges of the District Courts at chambers, under statutory provisions, with respect to injunctions, arrests, attachments, receivers, etc., in cases pending in such Courts, is unconstitutional.

We think the point untenable. As before remarked, the other questions are determined in the two cases already cited, and it is unnecessary to add anything.

It is but just to say, however, that the case was tried before those cases were determined, and the Judge did not have the benefit of our former decisions.

Judgment and order reversed and new trial ordered.