Dambmann v. White

By the Court, Crockett, J.:

The demurrer to the complaint was properly overruled. The statement in the complaint that the plaintiff is assignee in bankruptcy of Beinstein & Mamlock, may be treated as surplusage, or at most as descriptio persones, and may be disregarded without impairing the sufficiency of the complaint. Nor did tfye Court err in denying the motion for a nonsuit on the plaintiff’s opening statement. Under the general averment in the complaint, that “ the plaintiff was possessed as of his own property” of the goods and chattels enumerated, he was entitled- to show by proof that he had acquired the title by means of the proceedings in bankruptcy. These were probative facts, not necessary to be averred in the complaint. The ultimate fact to be proved, and which was averred, was that the title was in the plaintiff, and it was unnecessary to-state in the complaint how he acquired it. In suits by or against executors or administrators, their representative character must be averred in pleading, as was held in Halleck v. Mixer (16 Cal. 474), and Barfield v. Price (40 Cal. 535), for their right to sue and be sued, results by operation of law from the relation which they occupy toward the estate; and'this relation must be averred, and proved if denied. But in proceedings in bankruptcy, the legal title vests in the assignee under the assignment. .Whatever right the bankrupt had is assigned to and vests in the assignee, who thereby becomes, for the purpose of maintaining or defending suits, “possessed as of his own property” of the estate assigned to him. It is true he holds the title and the property when recovered in trust for certain purposes specified in the statute. But as between him and a stranger he holds the title, and may assert it in the same form .of action as though he owned the fee. This view of the law disposes also of the objection to the introduction in evidence of the proceedings in bankruptcy. If it was unnecessary to set them out in the complaint, it was, of course, competent to prove them without. the averment. (Nor was it necessary to prove all the steps in the proceeding, inasmuch as section fourteen of the bankrupt law provides that a copy of the assignment shall be conclusive evidence of the assignee’s title, and in this case a copy of the assignment was put in evidence, /

The objections made to the depositions offered by the plaintiff are untenable.

Section five hundred and seventeen of the Practice Act authorizes the Court to shorten the time whenever “a written notice of a motion is necessary;” and under section four hundred and thirty-three a written notice is necessary of an application for a commission to take the deposition of a witness in another State. The order to show cause and the issuing of the commission were equivalent to an order shortening the time, and dispensed with the necessity of any other or further notice. The objection that it does not appear on the face of the commission that the person to whom it was addressed was a Judge or Justice of the Peace is frivolous. The presumption is, that on granting the commission, the Court, or officer who ordered it, performed his duty and directed it to a person who was qualified to execute it. Furthermore, the return to the commission shows that the person to-whom it was directed, and who executed it, was a District Judge.

We deem it unnecessary to notice the other points discussed by counsel.

Judgment affirmed.

Mr. Chief Justice Wallace did not express an opinion.

The foregoing' opinion was delivered at the April term, 1873, and a rehearing having been granted, the following opinion was delivered at the July term, 1874.