In re Clarke

Citations

• 125 Cal. 388
• 58 P. 22
• 1899 Cal. LEXIS 869

Syllabus

<p>Involuntary Insolvency—Amended Petition—Appearance of Defendant-Motion to Strike Out—Reservation.—A defendant in involuntary insolvency, wlio first appears after the amendment of the petition by adding the names of new creditors, upon which no citation was issued, and moves to strike out the amended petition and parts thereof, on grounds not including a want of jurisdiction of his person, makes a general appearance, • notwithstanding an express statement in the motion to the contrary, and an express reservation of his “right to be brought into court by the issue of regular process.”</p> <p>Id—Nature of Appearance, How Determined — Character of Relief—The nature of an appearance, as being special or genIeral, is determined by the character of the relief asked and not by the expressed intention of the defendant. One who appears and objects to the consideration of a case for want of jurisdiction of his person, appears specially, whether he so states or not. But if he appears and asks for relief which can only be given to a party in a pending cause, the appearance is general, although it may be expressly declared to be special.</p> <p>Id!—Jurisdiction of Person of Defendant—Motion—Demurrer-Answer.—Where, upon the first appearance of the defendant in the insolvency proceedings, he asked favors by motion which could only be demanded by a party to the record, and, upon his motion being denied, he demurred to the petition upon nearly all of the statutory grounds, and also filed an answer upon which issues of fact were raised and tried, he submitted himself to the jurisdiction of the court, and cannot complain that he was not properly brought in by citation.</p> <p>Id.—Failure to Give Bond—Abatement—Adjudication of Insolvency—Waiver—The failure of the creditors to give bond does not render the insolvency proceedings absolutely void; but it is matter of abatement which must be taken advantage of prior to a trial of issues upon which an adjudication of insolvency is had; an