In re Barnard , 30 Minn. 512 ( 1883 )

Berry, J.

Eegularly the creditors’ petition provided for in section 2 of our insolvency act (Laws 1881, c. 148,) should be made (to use the statutory word) to the district court, or the judge of the district court, of the county in which the debtor or one of the debtors resides; or, in case no debtor resides in this state, then in any county in which any debtor has property subject to attachment or levy. But the making of the petition to the district court or judge of a wrong county does not go to the jurisdiction of either over the subject-matter or the debtor. General jurisdiction of insolvency proceedings is committed to the district courts, and hence, when the petition is made to the court or judge of the wrong county, the case is not one in which there is a want of jurisdiction, any more than there is when an ordinary civil action is brought in the wrong county. See Merrill v. Shaw, 5 Minn. 113, (148.) But at the time appointed for the hearing upon the petition, the debtor may apply to the court or judge before which or whom the proceeding is pending in a wrong county, to have it transferred to a proper county, and the application, if sustained by the facts appearing, must be granted as a matter of right.

It must be admitted that there are difficulties in the way of this construction, but there are difficulties in the way of any other, and this appears to us best adapted to accomplish the substantial purposes of the insolvent act. By general consent this act has proved to be a measure of great practical utility, and for that reason it should be liberally administered. There is ordinarily no considerable difficulty in ascertaining the substantive results which the legislature had in mind in its enactment. But this is not the first occasion upon which this court has found it necessary to subject its imperfections in details of practice to vigorous construction.

It follows from what we have said that the making of the petition to the court or judge of a wrong county is not a jurisdictional defect, and therefore furnishes no sufficient ground for dismissing the petition; and, as the greater includes the less, it follows that failure to allege in the petition that the debtor or one of the debtors resides in the county where the petition is made, or, if not a resident of the state, that he has property subject to levy or attachment therein, is also not jurisdictional, and no ground for a dismissal of the petition. The order of dismissal is accordingly reversed, and the case remanded for further action.