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In re Yoell

131 Cal. 581 Court Department Two. Decision date 1901-02-16 Docket S. F. No. 1683 English

Delivered by HENSHAW, J.

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p. 581
[S. F. No. 1683.
Department Two.
February 16, 1901.]
In re EMILY C. YOELL, an Insolvent Debtor.

Headnote

Insolvency—Opposition to Discharge—Defects in Proof of Notices —Appearance of Creditor—Estoppel.—A creditor who has made a general appearance and become an actor in an insolvency proceeding, has filed his claim in due and proper form, and has voluntarily appeared in opposition to the discharge of the insolvent, cannot then be heard for the first time to object against the discharge that there were defects in the proof of publication of notices to the creditors, which did not give the court jurisdiction to grant the discharge.
APPEAL from an order of the Superior Court of Santa Clara County granting a discharge to an insolvent debtor. M. H. Hyland, Judge.
The facts are stated in the opinion of the court.
Jackson Hatch, for Appellant.
D. W. Burchard, for Respondent.

Emily C. Yoell petitioned for and obtained her discharge in insolvency. Written opposition to her discharge was filed by certain creditors, who had proved their debts, upon the sole ground that the insolvent had concealed a part of her estate. At the hearing no testimony was offered in support of this ground of opposition, but the attorney for one of the contesting creditors opposed the discharge upon the ground of lack of jurisdiction in the court, for that certain affidavits proving publication of notices throughout the proceedings were insufficient to show that the court had acquired jurisdiction. But this particular creditor here appealing appeared in the insolvency proceedings, filed its claim in due and proper form, and later, either voluntarily or in response to some notice, again appeared and filed its written opposition to the granting of. the insolvent’s petition for discharge. In all this no objection was taken or suggested as to any deficiency in the notices. Having thus made its general appearance and become an actor in the insolvency proceedings, we think it may

p. 582
not now be heard to urge this ground in opposition. (Pomeroy v. Gregory, 66 Cal. 572 ; In re Clarke, 125 Cal. 388 .) In the latter ease the insolvent in a proceeding in involuntary insolvency-having appeared, demurred to the petition, and filed an answer upon which issues of fact were raised and tried, was held to have submitted himself to the jurisdiction of the court, and could not thereafter be heard to complain that he was improperly brought before it by insufficient citation.

The judgment appealed from is affirmed.

McFarland, J., and Temple, J., concurred.

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