People ex rel. Demarest v. Gray

10 Abb. Pr. 468, 19 How. Pr. 238

Opinion

By the Court.

*—Lott, P. J.

It appears that an order was made by the Hon. Samuel D. Morris, late county judge of Kings county, requiring the creditors of Morgan Gray, an insolvent debtor, to show cause before him on the 25th day of April, 1859, at his chambers in the city of Brooklyn, why an assignment of the said insolvent’s estate should not be made, and he be discharged from his debts, pursuant to the provisions of the statute for the discharge of an insolvent from his debts. ¡Notice of the order was directed by him to be published for ten weeks in the State paper, and two other designated papers, and to be served on each of the creditors, in person or by mail, as particularly stated in the order. Assuming that the publication of the notice in'the Albany Evening Journal was legal, it is shown by the proof of the publication that it was first published therein on the 16th day of February, 1859, and although the publication appears to have been made in each of ten successive weeks thereafter, yet the time between the first publication and the day appointed to show cause was only sixty-eight days, being consequently less than ten weeks. This notice was, therefore, not published for the period required by the order. Such a publication was expressly declared, in a proceeding of the same kind, to be insufficient. (Anonymous, 1 Wend., 90.) The same rule was applied in reference to a notice of sheriff’s sales of real estate, under an execution in Olcott a. Robinson (20 Barb., 148); and it has been recognized in daily practice in relation to the publication of a summons requiring defendants to appear in suits and notices of various kinds, required to be published in judicial proceedings.

Another objection taken to the proceeding is equally fatal. There was no notice of the order served upon the creditors or any of them. It is true that a paper purporting to be a notice of an order made by the Honorable Josiah Sutherland, a justice of the Supreme Court, requiring the creditors to show cause, &c., at his chambers in Brooklyn, on the day designated in the order of Judge Morris, was served a sufficient time previous to that day; but even that does not appear to have been signed by the insolvent, or by any person whatever. Such a notice was not a compliance with the statute, nor with the order directing its service. It is insisted, however, that this defect was a mere irregularity, and that advantage should have been taken of it on the return-day. There might be some color for that position if the only defect had been the omission to sign the notice, provided the name of the officer before whom cause was to be shown had been correctly stated; but it has no force, from the fact that the person named as the judge therein was not the officer before whom the proceeding was pending, and had no authority in the matter.

It is also insisted that, as satisfactory proof of the due publication and service of the notice was required to be given to the officer before any other proceedings were had by him, the fact that a discharge was granted is evidence that such proof was furnished, and the matter must be considered res adjudicaba.

It is a sufficient answer to this to say, that it is the object of the present proceeding to review that adjudication. The ten weeks’ advertisement, and the service of the notice on the creditors, were necessary to give the officer jurisdiction to grant the discharge. Till this was done he had no authority to proceed and adjudicate'on the rights of the parties to be affected by the proceedings. This principle was decided in the matter of Underwood, an insolvent debtor (3 Cow., 59); Van Slyke a. Sheldon (9 Barb., 278); and in Stanton a. Ellis (16 Ib., 319).

The proof of such advertisement and service should be affirmatively shown, and appear on the face of the proceedings, and cannot be inferred or presumed.

This question was fully considered in the last case cited, and it is only necessary to refer to it as a conclusive authority to show that the discharge in question was unauthorized and void.

Judgment must therefore be entered setting the discharge and other proceedings aside, with costs.

Present, Lott, P. J., Emott and Brown, JJ.