(67 Cal. 18)

SUPREME COURT OF CALIFORNIA.

ASHURST v. FOUNTAIN and others. (No. 8,427.)
Filed May 8, 1885.

1. ESTATES OF DECEDENTS-CITATION-MANNER OF SERVICE.

A citation is to be served in the same manner as a summons, and therefore service may be made on one who has departed from the state, by publication. 2. SAME-CITATION TO ADMINISTRATOR TO ACCOUNT-LIABILITY OF SURETIES. Sureties, on the undertaking of an administrator, are not liable for his failure, after citation issued therefor, to render his final account, unless service of such citation has been made on the administrator.

Department 1. Appeal from the superior court of Fresno county. H. S. Dixon, for respondent.

Clinton L. White, for appellant.

MCKINSTRY, J. The action is against the sureties on the undertaking of an administrator. The complaint avers "that on the eleventh day of April, 1881, said court (in which the settlement of the estate was pending) caused a citation to issue to said J. E. Dixon, (the administrator,) to render his final account of his administration of said estate; but, as said plaintiff is informed, believes, and here charges, said citation could not, and no other can now, be served upon said J. E. Dixon, by reason of the fact that he has departed from this state," etc.

mons.

The citation, as appears from the complaint and findings, was never served. A citation must be served in the same manner as a sumCode Civil Proc. § 1709. A summons may be served on one who has departed from the state by publication. Code Civil Proc. 412, 413. The personal notice mentioned in section 1710 is personal notice as distinguished from notice which, in the first instance, and only, is required to be made by a publication. It may be said that the only consequences of a failure of an administrator to account, when cited, are that he may be attached, or removed from office. But even if it should be conceded that this were so, we could not assume that the administrator would have failed to appear and render an account, had the citation been served. The present action cannot be maintained, because the power of the probate court to secure the appearance of the administrator at a settlement, which would have been conclusive of the rights of these defendants, has not been exhausted. Judgment and order reversed, and cause remanded for further proceedings.

We concur: MCKEE, J.; Ross, J.

V.6p,no.12--54

(67 Cal. 7)

RHODES V. BORDEN.

(No. 9,286.)

Filed May 5, 1885.

INSOLVENT LAW-DISCHARGE-EFFECT ON DEBTS DUE NON-RESIDENTS.

The discharge of an insolvent in one state, under its insolvent laws, is not a bar to an action in the state courts on a note executed by him in such state in favor of a resident of another state, where the place of payment is not specified in such note.

Department 1. Appeal from the superior court of Fresno county. Tupper & Tupper, for appellant.

E. D. Edwards and J. R. Webb, for respondent.

MCKINSTRY, J. The action is upon promissory notes made by defendant, payable to plaintiff, and delivered to the latter's agent in Fresno county; no place of payment specified. At the trial it was shown that the plaintiff, from a date long prior to the making of the notes, had been a citizen and continuously a resident of Alabama. The notes were made subsequently to the enactment of the insolvent law of this state. The only question is whether the discharge of defendant from his debts, under that law, is a bar to the action.

In the year 1812, it was determined by the supreme court of New York that discharge under the insolvent law of that state was a bar to a suit brought in the New York courts on a contract wherever made. Penniman v. Meigs, 9 Johns. 325. And in 1816 the supreme court of Massachusetts decided that a discharge under the bankrupt law of a state where the contract was made, and of which the debtor was a citizen, was a good bar to an action upon such contract in another state where the creditor resided. Blanchard v. Russell, 13 Mass. 1; S. C. 7 Amer. Dec. 106.

Sturges v. Crowinshield, 4 Wheat. 122, (A. D. 1819,) concludes all doubt of the proposition that a state insolvent law, as far as it attempts to provide for the discharge of a party, as to future acquisitions of property, from debts contracted previously to the enactment of the law, is unconstitutional, because violative of the obligation of such contracts. It is equally settled that insolvent laws providing for a discharge of debts contracted subsequent to their passage do not violate the obligation of contracts. Ogden v. Saunders, 12 Wheat. 213. In Suydam v. Broadnax (A. D. 1840) it was held by the supreme court of the United States that the certificate of discharge, under a state insolvent law, cannot be pleaded in bar of an action brought by a citizen of another state in the circuit court of the United States. 14 Pet. 67. The same court decided in 1857 that the jurisdiction of the courts of the United States over controversies arising between citizens of the United States cannot be impaired by the laws of the states, which prescribe the modes of redress in their own courts, or which regulate the distribution of their judicial power. Hyde v. Stone, 20 How. 170.

The decisions in the two cases last referred to seem to have turned

on the proposition that the act of congress to establish the judicial courts of the United States gives to the circuit courts original cognizance of all suits of a civil nature, and the right to a citizen of one state to sue a citizen of another state in such courts; that it was intended to give suitors, having a right to sue in the circuit courts, remedies co-extensive with that right; and that the remedies would not be so, if any proceedings under an act of state legislation, to which the plaintiff was not a party, exempting a person of such state from suit, could be pleaded to abate a suit in the circuit court. But in Ogden v. Saunders, supra, (A. D. 1827,)—the action being one brought in the circuit court of the United States by a citizen of Kentucky against a citizen of Louisiana,-it had been said by the supreme court that a certificate of discharge, under an insolvent law of a state, could not be pleaded in bar of an action brought by a citizen of another state "in the courts of the United States or of any other state than that where the discharge was obtained."

It has been held that a discharge in bankruptcy under the United States Statute is a bar to the claims of alien creditors. Murray v. De Rottenham, 6 Johns. Ch. 58; Ruiz v. Eickerman, 2 McCrary, 259; S. C. 5 Fed. Rep. 790.

Scribner v. Fisher, 2 Gray, 43, was decided by the supreme court of Massachusetts in the year 1854. That court was then of the opinion (METCALF, J., dissenting) that in no case had the supreme court of the United States determined that a certificate of discharge, under the insolvent law of a state, was not a bar to an action on a contract made by a citizen of the state where the discharge was granted with a citizen of another state, who does not prove his claim under those laws, if the contract, by its express terms, was to be performed in the state where the discharge was obtained.

The action of Baldwin v. Hale, 1 Wall. 223, was brought in the circuit court of the United States, but the opinion does not purport to decide the case upon any question arising out of the special jurisdiction of the federal courts. The supreme court of the United States there distinctly held:

"Insolvent laws of one state cannot discharge the contracts of citizens of other states, because they have no extraterritorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other state voluntarily becomes a party to the proceeding, has no jurisdiction in the case. Legal notice cannot be given, and consequently there can be no obligation to appear, and of course there can be no legal default."

The case was decided in 1863. As late as 1868 the supreme court of Massachusetts does not seem to have been fully satisfied with all that was said by Mr. Justice CLIFFORD in Baldwin v. Hale. In Stoddard v. Harrington, 100 Mass. 87, HOAR, J., speaking for that court, remarked:

"The suggestion that the power of a state over the contracts of its citizens is limited by the power to make them parties to the proceedings in insolvency does not seem to us well founded, because we think that the effect of the in

solvent law qualifies the contract from its inception; and the question of the sufficiency of the notice to creditors to make them so far parties as to be bound by these proceedings does not seem to be one over which the courts of the United States have any particular jurisdiction."

In that case it was held that if a contract is made between two citizens of the same state, within the state, one of whom afterwards removes therefrom and becomes a citizen of another state, and the other obtains in the first state, where he continues to reside, a discharge under the insolvent law, which was in force when the contract was made, the discharge is a bar to an action against him on the contract. The same court, however, recognizes the decisions of the supreme. court of the United States as of paramount authority, upon a question of this nature, and in 1864 heid:

"The supreme court of the United States having decided that a discharge under the insolvent laws of this commonwealth is no bar to an action upon a promissory note given to a citizen of another state, who has not proved his claim in insolvency, although the note was payable in this commonwealth, this court will adopt and apply the same doctrine." Kelley v. Drury, 9 Allen, 27. The supreme court of Vermont, too, understood the judgment in Baldwin v. Hale as decisive of the question presented in the case now before us. In Bedell v. Scruton, 54 Vt. 493, the court said:

"A discharge granted by a state court of insolvency is no bar to the claim of a non-resident creditor (citizen of another state) who does not take part in the insolvency proceedings, or submit himself in any way to the jurisdiction of the insolvency tribunal; nor is the rule affected by the place where the contract is made, or is to be performed, or the forum in which it is sought to be enforced."

We are of opinion that we should adopt and enforce the doctrine. of Baldwin v. Hale. In Thomas v. Crow, 4 PAC. REP. 448, this court recognized the rule there laid down, but held that the defendant was discharged of the particular debt represented by the promissory note sued on by an indorsee, because the discharge occurred when the note was the property of the payee, who was a citizen of this state, the note having been made and payable here.

Judgment and order reversed.

MILLIDGE v. HYDE and others. (No. 9,125.)
Filed May 5, 1885.

STATE LANDS-Affidavit of APPLICANT FOR PURCHASE, WHAT MUST BE STATED IN. The affidavit of an applicant for purchase of state lands, mentioned in the California Political Code, § 3494, (except the lands within the sixteenth and thirty-sixth sections,) must state the facts required by statute, (Pol. Code, 8 3500,) or he will acquire no right to purchase under such application.

Department 1. Appeal from the superior court of Fresno county. Sayle & Harris, for appellant.

Atwell & Bradley, for respondent.

MCKINSTRY, J., The demurrer to the complaint was properly sustained. The land which the plaintiff claims the right to purchase from the state is the N. W. of section 30, in township 15 S., etc. Section 3494 of the Political Code reads:

"The unsold portion of the five hundred thousand acres granted to the state for school purposes, the sixteenth and thirty-sixth sections, and lands selected in lieu thereof, must be sold at the rate of one dollar and twenty-five cents ($1.25) per acre, in gold coin, payable 20 per cent. of the principal within fifty days from the date of the certificate of location issued to the purchaser; the balance, bearing interest at the rate of 7 per cent. per annum in advance, is due and payable within one year after the passage of any act by the legislature requiring such payment, or before, if desired by the purchaser."

Section 3495 provides for the form of affidavit to be made by any person desiring to purchase any portion of a sixteenth or thirty-sixth. section surveyed by the United States. Section 3500 reads:

"Any person desiring to purchase any lands mentioned in section 3494, except the sixteenth and thirty-sixth sections, must make an affidavit that he is a citizen of the United States, (or has filed his intention of becoming so,) a resident of the state, of lawful age; that he desires to purchase such lands (describing the same by legal subdivisions) under the provisions of this title, and that there is no valid claim to such land other than that of the applicant; that he is an actual settler thereon; that he has not entered any land in part satisfaction of the unsold portion of the 500,000 acre grant, or of the grant in lieu of the sixteenth or thirty-sixth sections, which, together with that now sought to be purchased, exceeds three hundred and twenty acres."

The N. W. of section 30 is not any portion of a sixteenth or thirty-sixth section, and is included in the lands mentioned in section. 3494. The complaint shows that the affidavit of plaintiff did not comply with the requirements of section 3500.

It is well settled that an applicant is not entitled to purchase state lands unless his affidavit state the requisite facts. Hildebrand v. Stewart, 41 Cal. 387; Woods v. Sawtelle, 46 Cal. 391; Botsford v. Howell, 52 Cal. 158.

Where the defendant became a surety in place of a surety on the former bond of a guardian, he and the other sureties on the former bond became joint obligors, though their contracts were contained in different instruments; and under the law, as it existed in California in 1871, a release of one of the joint obligors released all the co-obligors, and therefore, under an order releasing all the obligors on the former bond, but not including the defendant in the release, his liability ceased at the time of such release, and he cannot be held liable for any subsequent defalcation.