Majority
p. 302[No. 6291.] O. P. GOODHUE v. D. A. RICE.
Headnote
Bankruptcy—Bill of Exceptions. — The adjudication of the bankruptcy of a party is not an issuable fact to be determined by the findings—a jury being waived—and where such a plea has been interposed, the party presenting it to the Supreme Court on appeal must embody it in a bill of exceptions.Same.—An application to stay proceedings on the ground that the applicant has been adjudged a bankrupt is a motion, and evidence given by him in support of the motion cannot be considered on appeal unless contained in a bill of exceptions.
Appeal from the District Court of the Fourteenth Judicial District, Placer County.
Action on a promissory note, commenced March 23rd, 1878. The defendant admitted making the note, but alleged that he was a bankrupt and had filed his petition in the United States District Court, May 4th, 1878, praying to be adjudged a bankrupt, and thereafter, May 7th, 1878, was so adjudged a bankrupt. He asked that the case be dismissed on the ground that the Court had no jurisdiction. The Court found the facts as alleged in the pleadings, and further, that no stay of proceedings had been ordered by the Bankrupt Court. Judgment was given for the plaintiff, and the defendant appealed, but brought up no bill of exceptions.
Hale & Craig, for Appellant.
B. F. Myers and James Moore, for Respondent.
The point urged by appellant could only have been properly presented to this Court by a bill of exceptions. The adjudication of defendant’s bankruptcy was not an issuable fact to be submitted to the jury, or to be determined by the findings—a jury being waived.
The application of a defendant for a stay of further proceedings in the action, on the ground that he has been adjudged a bankrupt, is a motion, and the evidence given by him in the District Court of the State in support of this motion can be considered here only when_ contained in a bill of exceptions duly settled and certified by the Judge of the Court below.
Judgment affirmed.