Madison v. Piper

• Decision Date: 26 May 1898
• Citation: 6 Idaho 137,53 P. 395
• Parties: MADISON v. PIPER, JUDGE
• Court: Idaho Supreme Court

53 P. 395

6 Idaho 137

MADISON v. PIPER, JUDGE

Supreme Court of Idaho

May 26, 1898

CERTIORARI-WHO MAY MAKE APPLICATION.-Under the provisions of section 4963 of the Revised Statutes, the application for a writ of review must be made by the party beneficially interested.

INSOLVENCY-JURISDICTION.-An insolvent against whom an order is made is the party beneficially interested in this case, and may make application for a writ of review, for the purpose of reviewing an order which the judge had no jurisdiction to make.

PETITION THE COMPLAINT-VERIFICATION.-The petition for a writ of review is the complaint and must be made on affidavit. The verification may be made by the attorney for the petitioner if such attorney knows all of the facts set up in the petition, and so states in the affidavit.

INSOLVENT DEBTOR-CANNOT BE REQUIRED TO ACCOUNT FOR UNPRESENTED CLAIM.-A creditor of an insolvent debtor, whose claim was secured by mortgage, and had not been presented, proved and allowed in the insolvency proceeding, made application to have the debtor examined, on oath, in relation to a part of the property included in said mortgage. Thereupon a citation was issued and the debtor was examined, and the judge found that the debtor had disposed of a part of said property, and ordered the debtor to account to the mortgagee for the same. Held, that the judge had no jurisdiction to make such order.

(Syllabus by the court.)

An original proceeding to review order of district judge.

Order set aside. Costs awarded to the plaintiff.

George W. Goode, for Petitioner.

The First National Bank (at the date of the citation and the time for appearing therein) had not filed its claim, nor was it entitled to file its claim until such time as an agreement or sale of the mortgaged property was made, unless it elected to place with the assignee its security. (Rev. Stats., sec 5911.) Therefore, we submit that the bank had no right to request, nor the judge to grant, the citation to petitioner. (Rev. Stats., sec. 5913; Lindenthal v. Burke, 2 Idaho 571, 21 P. 419.) The next question is, Had the judge the jurisdiction to make this order to be reviewed? After a pretended trial the judge orders this insolvent to pay this creditor about $ 321.06, when all the records and testimony show that this same insolvent is without a cent and has no property except that which is exempt. Of necessity he must disobey the order of the judge, and unless some kind friend comes to his rescue he must languish in jail for not doing something which it was impossible to do. (Ex parte Clancy, 90 Cal. 553, 27 P. 411; Statler v. Superior Court, 107 Cal. 536, 40 P. 949; Beamer v. Freeman, 84 Cal. 555, 24 P 169.)

Warren Truitt and S. S. Denning, for Defendants.

The jurisdiction conferred upon this court to issue the writ of review is only exercised when an inferior tribunal, board, or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor any other plain, speedy and adequate remedy. (Rev. Stats., secs. 4962-4968.) On the return of the writ the inquiry cannot be extended further than to determine whether the tribunal, board or officer has exceeded its jurisdiction. (C. P. R. R. Co. v. Placer Co., 43 Cal. 365.) After a petition and schedule in insolvency is filed, the control and dominion of the insolvent's property are transferred to the court. (Taffts v. Manlove, 14 Cal. 48, 73 Am Dec. 610.) A petition in insolvency looks to a discharge as the principal purpose of insolvency proceedings. The findings and order complained of in this case might be used to prevent the final discharge of the insolvent. (Broder v. Conklin, 98 Cal. 360, 33 P. 211.) When the further action of the court in the cause is necessary to give complete relief to the party making the complaint, or to carry out the object of the court, the order or judgment upon which the question arises is not final. (People v. Lindsay, 1 Idaho 394; Wyatt v. Wyatt, 2 Idaho 236, 10 P. 228; Goodday v. Superior Court, 65 Cal. 581, 4 P. 626.) A writ of certiorari or review will not lie to an inferior court or tribunal to review or set aside an order which is merely erroneous in a matter, where jurisdiction has been acquired by such court or tribunal. (People v. Elkins, 40 Cal. 642; C. P. R. R. Co. v. Placer County, 46 Cal. 668; Buckley v. Superior Court, 96 Cal. 119, 31 P. 8; Sherer v. Superior Court, 96 Cal. 653, 31 P. 565; History Co. v. Light, 97 Cal. 56, 31 P. 627; Farmers' etc. Bank v. Board etc., 97 Cal. 318, 32 P. 312.)

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an original proceeding in this court, whereby the plaintiff seeks by certiorari to have reviewed and annulled an order made by the district judge in an insolvency proceeding. In November, 1897, the plaintiff was adjudged to be an insolvent debtor. Subsequently, upon proper notice, the creditors met in open court, and elected J. B. West, Esq. assignee of said insolvent's estate. It appears that only two creditors had at the time of said election filed claims against said insolvent's estate. The First National Bank of Moscow, being one of said creditors, filed as claims two unsecured promissory notes; one for $ 162.50, and one for $ 171.20. It further appears that said bank also held a promissory note against said insolvent for $ 872.50, which was secured by a chattel mortgage on certain crops of wheat and hay and other property; that on the eighteenth day of January, 1898, said bank filed its petition in said district court, which showed that under said mortgage the insolvent had turned over to the bank about one thousand and three and one-half bushels of wheat. It is also alleged that said Madison harvested and kept in his possession a large amount of the hay and grain included in said mortgage, and disposed of the same, and no account thereof had been made to said bank. The prayer of said petition is as follows: "1. That said Martin Madison shall be required to appear before said court, or the judge thereof, at such time as may be designated, to answer upon oath as to the amount of grain and hay obtained or grown and harvested from said mortgaged premises for the year 1897; 2. That an order be made herein directing that sale of the wheat now in possession of said corporation above mentioned in such manner as may seem best for the interests of all parties concerned, and the proceeds of such sale credited upon said promissory notes secured by said chattel mortgage, and for such other and further relief as may seem just and equitable in the matter." Upon said application an order was made directing the sale of one thousand and three and one-half bushels of wheat, the warehouse receipts for which were in the hands of said mortgagees, and also ordered that a citation be issued to the plaintiff, Madison, requiring him to appear before the judge of said court at chambers in the city of Moscow on the twenty-sixth day of January to answer under oath in regard to the amount of grain and hay grown and harvested by him in the year 1897 upon the premises described in said chattel mortgage. On the twenty-sixth day of January, 1898, said insolvent appeared as required by the citation aforesaid, and certain testimony was adduced in regard to the hay and grain covered by said chattel mortgage, and the judge found that said Madison had received four hundred...