Hastings v. Cunningham

Citations

• 39 Cal. 137

Syllabus

<p>Peactice Act.—The Practice Act-is entirely remedial. It does not affect the rights of the parties as to'the subject-matter of the controversy, but prescribes the mode in which redress may be had when these rights have been invaded.</p> <p>Insolvent Act—Pbactice Undeb.—The Insolvent Act creates the right or privilege which is sought in the proceedings under it, and the record must show a substantial compliance with its requirements as conditions precedent.</p> <p>Idem. —Every intendment may be indulged in favor of the validity of the proceedings not inconsistent with the record; but this rule does not dispense with a substantial compliance with all the conditions of the statute. The record must, therefore, show such a compliance.</p> <p>Idem.—If it appear affirmatively from the record that the order to show cause was made one day before the petition was presented to the Judge, it comes within the rule in Hahn v. Kelly, and is coram non judice and void.</p> <p>Idem.—No mistake as to dates can be presumed, even if every intendment is to be indulged in favor of the proceeding. This would be a presumption against the record, which cannot lie.</p> <p>Idem.—Under the insolvent law of this State, the proceeding in bankruptcy is the voluntary act of the insolvent, and he is not divested of his right of property, nor does the title vest in the assignee, until a valid assignment is made.</p> <p>Idem. —-The assignment when properly made takes effect, by relation at the time the petition is filed, and the order staying proceedings is made.</p> <p>Judgment and Execution.—The statute does not require the docketing of the judgment to precede either the issuing or service of the execution. The docket creates and preserves a lienfor two years, but without docketing the judgment, execution may be issued upon it, and real estate levied upon and sold, and the sale and conveyance will pass all the interest held by the judgment debtor at the time of the levy.</p>