Brewster v. Ludekins

19 Cal. 162

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinions

Baldwin, J. delivered the opinion of the Court

Field, C. J. and Cope, J. concurring.

The only point we think it necessary to notice- is, whether the record of the insolvent proceedings of defendant was fatally defective, in this, that the schedule described the debt as a note of a certain tenor in suit in a certain Court, when, in fact, the debt had passed into judgment a short time before the filing of the insolvent petition. We think this variance not fatal. The direction of the statute is to require the petitioner to describe and identify the indebtedness; and a mistake as to the condition of that indebtedness—as "whether reduced to judgment or not—is not of essential importance, if the indebtedness be so described as that the holder of it can readily identify it. We think this could easily have been done by the description given in the schedule. If suit were pending in a distant county, it might be impossible for the insolvent to know at the time of filing the petition whether judgment had been taken or not; and we see no loss or injury to the creditor by a designation of the indebtedness in this form. Indeed, it fulfills all the substantial purposes of the requirement. (See Imlay v. Carpenter, 14 Cal., and cases there cited.)

2. There is nothing in the point that suit could not be brought in one District Court on a judgment recovered in another. (See Ames v. Hoy, in this Court.)

It is not necessary to notice the other points.

Judgment reversed and cause remanded.