Kohlman v. Wright , 1856 Cal. LEXIS 105 ( 1856 )

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

Mr. Chief Justice Murray concurred.

An application for a discharge in bankruptcy, is a special proceeding in the nature of an action, in which the applicant is plaintiff, and his creditors defendants. They may appear and contest his application, and if aggrieved by the judgment, may appeal within twelve months. (Prac. Act, § 336.) If not reversed on appeal, the .judgment of the Court is conclusive as between the parties. In this cause it appears that notice was duly given to the creditors, including defendant. The petition, schedule and affidavit, are the pleadings on the part of the plaintiff, and if sufficient to entitle the applicant to his discharge, any irregularity or defect of form must be taken advantage of before judgment.

In Greenfield v. Steamboat C. W. Gunnell, this Court held, that the objection that the complaint was not verified, was cured by the answer. We have also held that any objections to pleadings, except the single objection that the complaint does not contain facts sufficient to constitute a cause of action, are cured by default. The irregularity complained of here, is one of the most trivial character. The affidavit seems to have been made in the words of the statute; but it is attested by the clerk, instead of the judge; if the objection had been taken before judgment, the Court might have permitted the party to correct the error; as it was not done, the defendant cannot raise the question in another proceeding.

Judgment affirmed.