Hanscom v. Tower

Citations

• 17 Cal. 518

Syllabus

<p>An appeal from an order refusing a new trial brings up the whole record, and on such appeal error may be assigned on the judgment roll, even though there be no appeal from the final judgment.</p> <p>The answer to a suit on a note set up defendant’s discharge in insolvency. Plaintiff demurred to the answer, on the ground that it did not allege that the note was described, set forth, or included in defendant’s schedule: Held, that the demurrer was not well taken; that, under section fifty-nine of the Practice Act, it was sufficient to allege in the answer that a judgment had been duly rendered discharging defendant from the demand sued on ; and that whether the demand were sufficiently described was matter of evidence to be determined at the trial by inspection of the record.</p> <p>Where an insolvent’s schedule shows that one of his creditors resides out of this State at the time the proceedings in insolvency are instituted, an attorney must be appointed to represent such creditor, or the discharge will, as to him, be coram non judice; and the fact of such appointment, is a jurisdictional fact, must appear in the record, and cannot be shown by evidence aliunde.</p>