Ullman v. Lion

• Decision Date: 01 January 1863
• Parties: JOSEPH ULLMAN vs. KALMON LION.
• Court: Minnesota Supreme Court

8 Minn. 338

JOSEPH ULLMAN vs. KALMON LION.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey County.

Points and authorities for appellant: —

The error complained of by the appellant Ullman is, that the court below erred in excluding the judgment roll offered in evidence of the insolvency proceedings. What the plaintiff Ullman had to make out was, that a judgment had been entered up against him, in favor of the defendant Lion, for the claim of Lion against Ullman, and that said judgment had been satisfied. It was to prove the recovery of such judgment that the roll in the insolvency proceedings was offered in evidence.

There are several objections urged by counsel for defendant Lion, to this evidence, but we think it necessary to consider only such as relate to the affidavits of the publication of the order of the court, and as to these objections we answer: First, that these affidavits were wholly immaterial to the case on trial, and that it was not necessary for us to prove that the order of the court had been published as directed in the order, and these affidavits constitute no part of our evidence. To prove a judgment recovered, all that is required to be offered in evidence, is the summons, pleadings, and judgment. Sub. 2 of sec. 75, p. 566 of Statutes. If there had been no affidavit or other proof of the publication of the order of the court, the other papers would have been all-sufficient for our purpose. By section 7 of the insolvency act, the judge must require proof of the publication of order before proceeding to hear the case, and where the case was heard, and judgment entered in pursuance of the act, and a discharge given, the presumption is that such proof was made before the court, and when a judgment in such proceedings is pleaded, it is not competent to go back and review the proof, or the sufficiency thereof given in the proceedings.

Section 24 of the insolvency act specifies and enumerates the causes and grounds which may be urged, and which shall render voidable the discharge granted to a insolvent, and the objection now urged by counsel for Lion is not there mentioned.

Smith & Gilman, for appellant.

I. V. D. Heard, for respondent.

ATWATER, J.

This was an action brought by the plaintiff Ullman, to enjoin the defendant from proceeding to collect an execution issued upon a judgment in favor of said defendant against the plaintiff. The ground of the plaintiff for the relief claimed is, that subsequent to the rendition of the judgment, and before the execution was issued, the plaintiff had been discharged from his debts under the provisions of chap. 79, Comp. Stat. p. 654, relating to relief of insolvent debtors. The answer put in issue the discharge, and also set up fraud in obtaining the same. There was a reply, denying the new matter set up in the answer.

The first proceeding disclosed by the paper-book furnished to the court upon the trial of the cause is, that "the defendant objects to the introduction of the insolvent proceedings herein," upon various grounds stated with the objection. We infer from this that the plaintiff offered these proceedings for the purpose of proving the allegations of the complaint in regard to the discharge from his debts. It appears that the court sustained the objection, "so far as to exclude the introduction of the judgment roll in said proceeding as evidence in this case." The appellant alleges this as one ground of error in the ruling of the court below.

Among the grounds of objection to the introduction of these insolvent proceedings was, that "no proper proof was required of the publication of the notices directed by the judge to be published as required by sec. 6 of ch. 79 Comp. Stat." It appears that the order required notice of the application to be published in the Jefferson City Examiner, a newspaper published at Jefferson City, the capital of the State of Missouri, and in the St. Paul Weekly Press, a newspaper published in St. Paul, Ramsey County, once in each week for ten successive weeks prior to the day of hearing. Sec. 7 of ch. 79, above referred to, provides that "on the day, etc., the judge or court, as the case may be, shall proceed to hear the proof and allegations of the parties, and before any other proceeding be had, shall require proof of the publication of the notice as herein directed." Proof of the publication of these notices is thus made an essential prerequisite to the right or power of the judge to proceed with the hearing of the case. With regard to the notice published in the St. Paul Weekly Press, the affidavit of...