In the Matter of WILLIAM F. SMITH, an Insolvent. JOHN McCOMBE, Appellant, v. WILLIAM F. SMITH, Respondent, 68 Cal. 203

Ross, J. — That the judgment of the court below granting the petitioner a discharge from his debts is erroneous is clear. The debts from which he sought to be discharged by the proceedings in the court below, which were had under the state Insolvency Act of 1880, wore incurred and were existing prior to August 30, 1878.

On that day this petitioner filed a petition in the District Court of the United States in and for the district of California, praying to be adjudged a bankrupt pursuant to the provisions of the then Bankrupt Act of the United States, and to be discharged from his debts provable thereunder; and such proceedings were had that on the thirty-first day of August, 1878, the petitioner was duly adjudged a bankrupt by the said District Court, and subsequently an assignee of his estate duly appointed, to whom all the property of the bankrupt was duly assigned.

In due course of proceedings, the petitioner filed a petition for certificate of final discharge, which, coming on regularly to be heard, was by the court denied, and judgment entered accordingly. It is well settled that the jurisdiction acquired by the United States District Court in the matter is exclusive. The judgment appealed from purports to discharge petitioner from debts from which the United States Court, having jurisdiction of the matter, refused to discharge him.

It is clear that the state Insolvency Act affords no warrant for such a judgment, nor, indeed, for any of the proceedings on the part of the petitioner. One of the provisions of that act is that the petitioner shall surrender his property, books, etc., for the benefit of his creditors. But petitioner took his property to another forum, and comes here to be discharged from his debts.

Besides, the Insolvent Act of I860 in terms provides that no discharge shall be granted if the debtor, “in case of voluntary insolvency, has received the benefits of this or any other act of insolvency or bankruptcy within three years next preceding his application for discharge.” Judgment reversed, and cause remanded with directions to the court below to dismiss the proceedings. McKee, J., and McKinstry, J., concurred.