
    LEWIS against PAGE.
    
      New York Common Pleas; General Term,
    
    
      Dec., 1869.
    Insolvent’s Discharge.—Proof of Notice to Orel itors.—Jurisdictional Facts.
    Proof of notice to creditors to appear, before granting a discharge under the two-thirds act, is essential to a valid discharge.
    A discharge is wholly void, if the only proof of such notice was of a notice purporting to be returnable at a date subsequent to that on which the 1 discharge was granted.
    Appeal from a district court of the city of New York.
    This action was brought by Thomas M. Lewis, plaintiff, and now respondent, against John A. Page, defendant, and now appellant, in the district court of the city of New York for the sixth district, and judgment was rendered for plaintiff.
    The action was brought to recover thirty dollars due for goods sold and delivered February 14, 1861. The defendant answered, setting up the statute of ..limitations, and his discharge as an insolvent, under the two-thirds act, dated December 17, 1862.
    The plaintiff produced the proceedings on file in the New York county clerk’s office, by which it appearec that the notice to creditors, published in the Albany Atlas and Argus, the State paper, was for the twenty-ninth day of December, 1862. The order was returnable the ninth day of the same month, and the discharge was granted the seventeenth day of the same month.
    The defendant, by a stipulation, admitted that the papers on file and produced on the trial contained the proceedings and evidence, and every part thereof, had and taken before City Judge McCmsrar, upon the application for the discharge.
    Mr. Justice Babbett, before whom the cause was tried, found that the discharge was void, and directed, judgment for the plaintiff for forty-five dollars and' forty-four cents, and disbursements.
    The defendant appealed to the court of common . pleas.
    
      Goepp & Stern, for the appellant;
    Cited Soule v. Chase, 1 Abb. Pr. N. S., 48.
    
      James J. Thomson, for the respondent.
    I. The discharge is void for want of notice to creditors. (1.) The notice to creditors is in the nature of process by whiqh the officer brings the creditor before him, and obtains jurisdiction "over the creditor ; it is the first notice that the creditor has of the proceeding, and without it he never could know of the application (2 Rev. Stat., 19, § 10; Small v. Wheaton, 4 E. D. Smith, 308; see to same point in proceedings for the sale of estate of deceased person, Sibley v. Waffle, 16 N. Y., 191; Sheldon v. Wright, 5 N. Y. [1 Seld.], 513, 514). The statute in the latter case was held to be merely directory; but it was requisite to obtain jurisdiction. In these proceedings the statute prohibits proceeding in the matter. In cases for sale of deceased insolvent’s estates, it is as imperative that the surrogate should obtain jurisdiction over the heir as that he should over the applicant (Schneider v. McFarland, 2 N. Y. [2 Comst.], 463). In these cases of deceased insolvent’s estates, the surro- ! gate may judge of proof offered, and his finding is con- ‘ elusive ; but here the judae must have it, and it must < be legal proof, or his jurisdiction is gone. (2.) Without publication of notice there can be no proof that publication was made ; and here there was no pretense that there was either publication or proof; defendants. stipulation, show's that there was neither ; the statute requires that proof of the publication should be presented to the officer before any other proceédings can be had (2 Rev. Stat., 19, § 12). (3.) The want of notice is a jurisdictional defect (People ex rel. Demarest v. Gray, 10 Abb. Pr., 471; Small v. Wheaton, 4 E. D. Smith, 308, 313; Stanton v. Ellis, 16 Barb., 319). “ Jurisdiction” is the power to hear and determine a cause (United States v. Arredondo, 6 Pet., 709). “Process,” because it proceeds or issues out of court, in order to bring defendant into court to answer the charge preferred against him, signifies the writ or judicial means by which he is brought to answer (Bouv. Law Dic., referring to 1 Paine, 368). The officer unquestionably acquired jurisdiction of the subject matter on presentation of the petition, &c. ; but the rights of the creditors w°ere to be affected, and before a valid discharge could be granted the creditors must be brought before the officer ; and this could only be accomplished by publication of notice and proof of service.
    II. Want of notice, being, a jurisdictional;,,defect, may be inquired into wherever a discharge is interposed (Small v. Wheaton, 4 E. D. Smith, 308; Stanton v. Ellis, 16 Barb., 324; People ex rel. Demarest v. Gray, 10 Abb. Pr., 470, 471). Other jurisdictional defects are frivolous compared with this. For instance: Omission to specify consideration of indebtedness in schedule (1 Wend., 156; 3 Wend., 344); or stating it as “On a note ”—“on a judgment”—“on an account” (43 Barb., 476; 2 Hilt., 338). Omission to present proof of residénce, or place of imprisonment of debtor (People ex rel. Pacific M. Ins. Co. v. Machado, 16 Abb. Pr., 460). To swear to affidavit before proper officer (Ely v. Cooke, 28 N. Y., 365). Affidavit, stating that no disposition1 of estate has been made “for benefit of creditor and! his family,” while the statute requires “ or his family” (Merry v. Sweet, 43 Barb., 476). Omission by petitioning creditor to annex verified account of securities, and original account or specialty (16 Abb. Pr., 457). Sum blank in schedule of creditors (Stanton v. Ellis, 12 N. Y. [2 Kern.], 575).
    III. Tire only opinions against the' view of respondent are the dicta of Justice Robertson, in Soule v. , Chase, and Justice Denio, in Stanton y. Ellis, in neither.. of which was the question of notice raised. While in its favor are statutory prohibition to proceeding w'thout proof of publication, and the cases of Stanton v. Ellis, 16 Barb., 319; Small v. Wheaton, 4 E. D. Smith, 308; People ex rel. Demarest v. Gray, 10 Abb. Pr., 468. In these cases the question was raised, considered, and passed upon. The question of “ affirmative evidence,” if it should be raised, is shut out of the case by the stipulation. Proof should be affirmatively shown, and appear on the face of the proceedings (10 Abb. Pr., 471).
   By the Court.—Brady, J.

It is admitted by stipulation to that effect, that the proof given on the trial herein of the proceedings before the officer granting the defendant’s discharge as an insolvent, fully represents such proceedings and evidence, and every part thereof, taken before such officer, and such evidence shows that no proof of publication of notice as directed by him to be made was produced to him.

The statute provides that on the day appointed for the creditors to show cause, the. officer shall proceed to hear the proofs and allegations of the parties, and before any other proceeding be had, shall require proof of the publication of the notice therein directed (2 Rev. Stat., 4 ed., 201, § 17). This provision is entirely free from any ambiguity; and the duty of the officer is plainly marked out. He may proceed on the day ll named, to hear the proofs and allegations; but before any other proceeding shall be had, he must require proof of publication. The other proceeding would be an order directing the assignment, which is preliminary to the discharge. The reason for requiring the proof of publication is apparent. The creditors are entitled to notice ; and when it is to be given by publication only, they are deprived of it. and an important element of the proceeding is disregarded, if the officer can dispense' with proof that it has been given. He possesses no such authority.' It is not a matter of discretion, but of duty, and one which he should faithfully discharge. It fol-1 lows, that if he had not the power to do more than hear ■ the proofs and allegations, he could not grant the discharge, or any of the necessary orders prior thereto.

The sufficiency of the proof of publication rests, it is true, on the officer ; but there must be some proof. It is conceded in this case, as already stated, that there was no proof produced ; and therefore it is clear that he had not the power to grant the discharge which he gave.

This point was decided in the matter of Underwood, 3 Cow., 59; Stanton v. Ellis, 16 Barb., 319; and asserted in Small v. Wheaton, 4 E. D. Smith, 309, upon a review of the authorities, although not directly involved in that case. There is a suggestion by Dentó, J., in Staton v. Ellis, in the court of appeals, (12 N. Y. [2 Kern.), 575), that if jurisdiction was acquired by the original papers, the recital in the discharge covered the want of notice. The question was not examined, however, in that case, although the decision in the supreme court was based upon the point.

I consider the proof of publication an original paper, which is indispensable to the further progress of the officer, after hearing the proofs and allegations, and.» without which he cannot proceed. The, creditor must have notice, to be concluded.

The case of Soule v. Chase (1 Abb. Pr. N. S., 48), is not in conflict with the views herein expressed. There was some proof of publication in that case, and the-court said (page 58), that “there was no evidence in! this case that the affidavits offered were the only proof, of publication received by the officer, and the recitals in the discharge are at least prima facie evidence of due proof, even if it were a jurisdictional fact.”

The question under consideration does not appear to have been presented in the case of Rusher v. Sherman (28 Barb., 416), and that case is not an authority against the conclusions herein expressed.

Judge Ingraham, who wrote the opinion, does not refer to the decision of the case of Stanton v. Ellis (supra), and in which that point was expressly decided.

I think' the judgment, for these reasons, should be affirmed.  