Lower v. Knox.

LOWER v. KNOX.

A failure of sureties upon an undertaking on appeal, to justify, when they are excepted to, leaves the appeal as though no undertaking had been filed, and ineffectual for any purpose. Where a party gave notice of the justification of the sureties on an undertaking before the clerk of the Court below, on the second of November, between the hours of ten, A. M., and five, P. M., of that day, and the sureties appeared upon such notice soon after ten of that day: Held, that the clerk acted properly in refusing to take their justification, the opposite party being absent, until the last hour stated in the notice. Where an appeal is taken in the same notice, both from a final judgment and an order refusing a new trial, after sixty days from the entry of the order for a new trial, the appeal, so far as the order is concerned, will, on motion, be dismissed. Where a motion for a new trial is denied, and the record brings up the statement filed on the motion, this Court can only examine upon such statement the action of the Court in denying the motion.

APPEAL from the District Court of the Fourth Judicial District, County of San Francisco.

The judgment in this case was rendered on the thirtieth of May, 1857, and the motion for a new trial was denied on the twenty-fourth of the following October. On the twenty-fourth of this last month, October, the defendant appealed from both the judgment and order, and on the same day filed his undertaking. To the sufficiency of the sureties on this undertaking, the plaintiff excepted. The defendant then gave notice of his justification before the clerk of the Court below on the second of November, 1857, between the hours of ten, A. M., and five, P. M., of that day. Soon after ten of that day, the sureties appeared before the clerk, and offered to justify, but the clerk declined, the opposite party being absent, to take their justification previous to the last hour designated in the notice. The sureties then departed, and the undertaking was not approved.

Subsequently, on the twenty-sixth of December, 1857, the defendant filed a second notice of appeal from the same judgment and order, and gave a new undertaking, upon which the sureties justified.

Preliminary to the argument of the appeal from the judgment, the respondent moved to dismiss the first appeal for the failure of the sureties to justify on their undertaking; and the second appeal, so far as it was from the order denying a new trial, on the ground that it was taken after the expiration of sixty days from the entry of the order.

FIELD, J., after stating the facts of the case, delivered the opinion of the Court-TERRY, C. J., concurring.

The motion to dismiss must be granted. The failure of the sureties to justify left the first appeal, by the express terms of

Buckholder v. Byers.

the statute, as though no undertaking had been given, and inef fectual for any purpose. (Practice Act, § 348 and § 355, as amended in 1854.)

The clerk very properly refused to take the justification of the sureties before the last hour stated in the notice. The defendant should have designated an hour at which he would have been present with his sureties, and he could not, by his failure to do so, compel the attendance of the opposite party the entire day in waiting for his appearance.

The second appeal, so far as the order denying a new trial is concerned, was taken too late. The time for appeal had previously expired.

This view leaves the record with only the appeal from the final judgment, and upon this appeal there is no statement which we can regard. The statement embodied in the record was filed upon the motion for a new trial, some months after the entry of the judgment, and upon it we could only examine the action of the Court in denying the motion, and this action is not open for review, as no appeal was taken in time from the order. Our attention must, therefore, be confined to the judgment-roll, and this discloses no error. Judgment affirmed.

BUCKHOLDER et al. v. BYERS.

The filing of a notice of appeal must precede the filing of the undertaking on appeal. Until an appeal is taken, there is nothing to give effect to the undertaking.

MOTION to dismiss the Appeal.

This is a motion to dismiss the appeal, on the ground that no undertaking has been filed since the appeal was taken. The undertaking was filed the 28th of April, 1858, whilst the notice of appeal was not filed until May 31st, 1858, more than a month afterwards.

R. S. Mesick for the motion.

G. N. Swezy in opposition.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring.

The motion must be granted. Until an appeal is taken, there is nothing to give effect to the undertaking. If an appeal could be rendered effectual by an undertaking filed one month pre

In the matter of the Estate of James A. Taylor.

viously, it might be by an undertaking filed at any time previously within a year. And the undertaking, if of sufficient amount, must operate, if at all, to stay proceedings, and it would thus often happen that a stay would be obtained for the entire period during which an appeal is allowed, and no appeal in fact be ever taken.

The filing of the notice of appeal must precede the filing of the undertaking.

Appeal dismissed.

IN THE MATTER OF THE ESTATE OF JAMES A. TAYLOR, DECEASED.

The only difference between the claims of an executor or administrator, and those of other creditors, as to their presentation after publication of notice, is, that the latter must be presented to both the executor or administrator, and the Probate Judge, and the former only to the Judge.

The period within which the presentation must be made, is the same in both cases.

APPEAL from an order of the Probate Court of Sonoma County.

The executor of the estate of James A. Taylor, deceased, was himself a creditor, but did not present his claim to the Probate Judge for allowance until after the expiration of the ten months from the time he published a notice for the presentation of claims against the estate, and for that reason the Probate Judge disallowed it. From the order disallowing the claim, the appeal is taken by the executor.

D. O. Shattuck for Appellant.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring.

The statute requires, in general terms, claims against the estates of deceased persons to be presented to the executor or administrator within ten months after the publication of notice for the presentation of claims, and if allowed, to be then presented to the Probate Judge for his approval; but provides that where the executor or administrator is himself a creditor, the presentation shall be made to the Probate Judge in the first instance. The only difference between the claims of an executor or administrator, and those of other creditors, is that the latter must be presented to both the executor or administrator and the Probate Judge, and the former only to the Judge. It would, indeed, be a useless provision to require the executor or administrator to allow his own claim. We are of opinion that the period within

Slade v. His Creditors.

which the presentation must be made is the same in both classes of claims, and for want of such presentation by the executor within the ten months, his claim was properly disallowed. Judgment affirmed.

SLADE v. HIS CREDITORS.

The jurisdiction of the Fourth District Court, in the county of San Francisco, continues the same as it was previous to the creation of the Twelfth Judicial District. The jurisdiction of the Fourth District Court and of the Twelfth District Court, within the limits of the city of San Francisco, is equally extensive, and proceedings may be commenced in either Court, at the option of the suitor.

Where an insolvent, in his petition to the District Judge of the Fourth Judicial District, stated that he was "a resident of the city of San Francisco:" Held, that the averment was sufficient that his residence was within the Fourth Judicial District. A defective statement in the schedule of an insolvent, of certain promissory notes which constitute a portion of his debts and liabilities, does not invalidate the entire proceedings. If the statute as to the particularity with which debts and liabilities are required to be set forth by the insolvent, is not substantially complied with, a creditor can not be prejudiced by the decree of discharge in any suit which he may institute to enforce his claim.

APPEAL from the District Court of the Fourth Judicial District, County of San Francisco.

This is an appeal from a decree of the Fourth District Court, discharging the insolvent from his debts, under the act entitled "An Act for the relief of Insolvent Debtors and the protection of Creditors," passed May 4, 1852. The appeal is taken by a portion of the creditors of the insolvent. In his petition to the District Judge of the Fourth District Court, the insolvent states "that he is a resident of the city of San Francisco," but does not state that his domicil, or usual place of residence, is within the Fourth Judicial District. In his schedule, certain notes which form a part of his indebtedness, are described as follows-taking two cases from the schedule, as illustrative of the manner of description:

"Alvin Slade, composing the firm of Slade & Co., note to Bingham & Reynolds, of San Francisco, dated April 4, 1857, payable May 4, 1857. $800."

"Alvin Slade, composing the firm of Slade & Co., note to Samuel B. Goodale, of San Francisco, dated March 19, 1857, 45 days. $700."

Delos Lake for Appellants.

1. The petition of the insolvent does not set forth facts sufficient to give the Court jurisdiction.

It states that he is "a resident of the city of San Francisco."

Slade v. His Creditors.

It should show that his domicil, or within the Fourth Judicial District.

usual place of residence, is See § 2 of the act.

An application, under this act, is a special remedy, and the statute must be pursued strictly.

"The Court must first ascertain that the person, the subjectmatter, and the remedy sought, are within the statute, before its jurisdiction will attach." Meyer v. Kalkman, 8 Cal., 44; Cohen v. Barrett, 5 Ib., 195.

2. The discharge is erroneous or void, by reason of the petitioner not setting forth the cause and nature of the indebtedness for which the several promissory notes, described in the schedule, were given.

Section three of the statute requires the debtor, among other things, to set forth "the amount due to each creditor, the cause and nature of such indebtedness, and when it accrued."

The schedule, in this case, merely describes the promissory notes. This is not a compliance with either the letter or spirit of the statute.

The notes may have been given without any consideration whatever, and for the purpose of defrauding other creditors.

The precise point has been passed upon in New York, under a statute whose language, in this respect, is similar to that used in our Insolvent Act. In the matter of E. Cook, 15 Johns., 182; Slidell v. McCrea, 1 Wend., 156.

Cook and Fenner for Insolvent.

I. The petition in this case shows that the insolvent is a resident of the city of San Francisco, and this being the fact, either the Fourth or Twelfth District Court has jurisdiction, inasmuch as both Courts have jurisdiction in that city. The statute simply requires that the insolvent shall petition the Judge having original jurisdiction within the place of his domicil or usual res

idence.

The statute does not even require this fact to appear in the petition.

II. The statute is substantially complied with in the description of the indebtedness of the insolvent. It provides that the debtor shall annex to said petition his schedule: that is to say, a summary statement of his affairs, with a list of losses he may have sustained, giving the names of his creditors, if known, the amount due to each creditor, and the cause and nature of such indebtedness, etc.

Here, it is stated to be a promissory note-true, the cause is not stated, that is to say, it does not appear whether the note was given for a horse, or for work and labor, but the nature of the debt is stated-the date, the holder-so that any creditor could, without any difficulty, ascertain the character of the transaction.