People ex rel. Galsten v. Brooks

40 How. Pr. 165

• Court: New York Supreme Court
• Decided: October 15, 1869
• Status: Published

Opinion

By the court, Morgan, J.

The proceedings before the county judge were .conducted very loosely, and although the discharge purports to have been granted by the court, it is conceded that it was not granted at any regularly appointed or adjourned term. Nor is there any caption or other memorandum or certificate, showing that it was granted by the county-court. The most we know is that it is signed by the county judge, who certifies that the proceedings took place in court, but by whom held or at what place does not appear. For anything that appears, the court may have been held in another county or in some other building than the one designated by law for holding the county courts.

Assuming, however, that the final discharge was granted by the county judge while holding a county court, it was open only for the transaction of ex parte business, (Code of Procedure, section 31.) The proceedings of the debtor under the statute above referred to, could be had only at a regular term of the county court. (2 R. S., 32, sections 6 and 7.) And the final discharge must be granted either at the same term on some day thereof, or at the next term. (Id., sections 7 and 8.) As these proceedings were not adjourned to the next term, the adjournment of the court without day put an end to them. . The subsequent proceedings had before the judge were coram non judice, and wholly void for want of jurisdiction, as they were had before him neither ata regularly appointed, or adjourned term, and his court, opened only for ex parte business, had no authority to entertain proceedings which had fallen through the regular term. Although the judge may decide a matter in court after the adjournment of the term, the order must be entered as of the term when the matter was submitted.

I am, also of opinion that the account of his estate presented by the debtor was fatally defective, and did not authorize the county court to proceed in the. case. (2 R. S., 31, section 4; People agt. Banker, 1 Seld., 123 ; Spear agt. Wardwell, 1 Comst., 144.)

I am, also of opinion, that the voluntary proceedings in bankruptcy was a fraud upon the statute under which the debtor sought to obtain his discharge, and that the county court should have refused the discharge upon that ground. (People agt. Banker, supra 107.)

I am, also of opinion, that we have power to review the decision of the county court for this error, as well as for want of jurisdiction. (2 R. S., 49 section 47 ; Morewood agt. Hollister, 2 Seld. 309.)

The discharge should be adjudged, void and annulled.

Proceedings reversed, and discharge adjudged void.