Clarke v. Ray , 6 Cal. 600 ( 1856 )

The opinion of the Court was delivered by Mr. Justice Heydenfeldt.

Mr. Chief Justice Murray and Mr. Justice Terry concurred.

1. The date of the publication of notice to creditors,' under our Insolvent Act, is the first day on which tire notice was published.

2. The objection that the Court was adjourned at the time appointed, and at the time the judge met to hear the objections of the creditors, is not valid. The statute authorizes such hearing to be in open Court or at chambers; thh so-called adjournment was not of the term; it was, in effect, but a recess from labor within the term, and the Court had the power to resume its duties whenever the judge saw fit; provided, that, in the proceedings subsequent, parties suffered no injustice from surprise. This cannot be urged here, as the petition was heard on the day appointed for that purpose.

3. The objection that the order of discharge was granted in chambers, is not sustained by the record. The mere circumstance that the finding says that the Judge of the Twelfth District Court made the order, does not show that it was made in chambers. The same finding recites that on the day of the order one of the creditors, in open Court, withdrew his objections to the discharge, which makes it evident that the latter was granted in open Court. Besides this, all intendments are in favor of sustaining the judgment below.

4. The Insolvent Law of this State is not obnoxious to any provisions of the Constitution.

Judgment affirmed.