Jones v. Knox

PETERS, C. J.

The only question remaining in this case, yet to be settled, if the decision in Jones & Cullom v. Knox (46 Ala. 53) is to be adhered to, — and I see no sufficient reason for disturbing it, — is the question raised by the amended bill, which was filed in the court below after the cause was remanded upon the decision above referred to. This amendment alleges, in effect, that tbe complainant, Knox, wbo is tbe appellee here, bad' no notice of tbe proceedings in bankruptcy, whether by publication in a newspaper, or by mail, in which tbe appellant, Jones, obtained tbe discharge on which he relies for his defence. This allegation of a want of notice is denied in the defendant’s answer. The proof shows that Knox was not named as a creditor of Jones in his schedule or memorandum of his debts and creditors filed with his petition for his discharge, under the bankrupt law; and no actual notice, by mail or otherwise, is shown to have been given him. All that is shown by the bankrupt is his discharge, regularly and properly granted and certified.

As a general principle, it is well settled, when the proceeding is in personam, that a party will not be bound by a judgment of a court, in which he has not had such notice as the law requires to be given him, of the proceedings in which the judgment has been rendered. If no such notice is given, the party without notice is not brought within the jurisdiction, and, as to him, the judgment is void, and it may be collaterally impeached. 4 Pet. 466; 14 Pet. 147; 11 How. 437; 9 How. 336; 2 Pa. 502; 4 McL. 96.

There are two forms of notice directed by the bankrupt law to be given to the creditors of the petitioning debtor. The one is by publication in a newspaper, required to be made on warrant of the judge or register of the court in which the proceeding is commenced. The other is by notice sent by mail, or personally served, made on like authority. For each of these, forms are prescribed. B. L. § xi.; Bump, pp. 25, 333. Hence it will be assumed, on presentation of the discharge, that the notice by publication, being a necessary and regular step in the cause, had been duly given. Best Pres. Ev. p. 15. This clothed the court with jurisdiction of the matters alleged in the petition. This gave it jurisdiction of the right to try the bankruptcy of the petitioning debtor, and to grant him a discharge. The exercise of this power in this way is given by the act of congress, which that body had the most ample authority to pass, and to legalize the notice in this way, whether the notice reached the creditor or not. The notice by publication in a newspaper, on warrant or order of the court, was sufficient to call the jurisdiction of the bankrupt court into active operation. The court was thus clothed with authority to discharge the petitioning debtor, if no sufficient objection was shown against it. B. L. § 32; Bump, pp. 516, 517. A decree of discharge on such notice, if the court had jurisdiction over the subject-matter of the petition, and exercised it according to law, is conclusive, and' cannot be impeached in a collateral proceeding, however irregularly the court may have proceeded. In such a case, only a wilful and fraudulent omission to include tbe creditor’s claim or demand in the schedules of the petitioning debtor will avoid the discharge. Fox v. Paine, 10 Ala. 523; Symonds v. Barnes, 59 Me. 191; Burnside v. Bingham, 8 Metc. 75; Mitchell v. Singletary, 19 Ohio, 219. Here, there is no allegation of such wilful and fraudulent omission, and no proof of such allegation. It therefore follows, that the objection to the discharge, as stated in the amended bill, and attempted to be supported by the evidence adduced, cannot be allowed. For this reason, the demurrer to the amended bill should have been sustained. The amended bill is without equity, and, unless it is properly amended, it should be dismissed.

The judgment of the court below is reversed, and the cause is remanded. The appellee’s nest friend, said Scott, will pay the costs of this appeal in this court, and in the court below.