Wagner

The petition for a rehearing will be denied. It appears that on September 28, 1892, the petitioner, L. M. Wagner, was adjudged insolvent by the superior court of Los Angeles, and subsequently the court, in the matter of the insolvency proceeding, made a distribution of all of the estate of the insolvent which had come into the possession of the assignee, and granted to the petitioner here a certificate of discharge of all debts and claims existing against her at the date of the filing of her petition to be adjudged insolvent, and also made an order discharging the assignee, which latter order was subsequently vacated.

When the order was made granting to the petitioner here a certificate of discharge, the insolvency proceeding was ended as to her, and the court had no further jurisdiction over the person of the insolvent, and'its jurisdiction could only be restored by an application upon the part of some creditor to set aside and annul the decree or certificate discharging her from her indebtedness as provided by section 53 of the Insolvent Act.

It seems, however, that since the making of the orders referred to two petitions have been filed in the superior court, each praying…

The filing of a new opinion by the court denying a rehearing of this cause presents a proper occasion for me to state the grounds of my dissent from the judgment and from the present order. In this new opinion the facts which I deem most material to the discussion, although correctly stated, are somewhat obscured by the more particular statement of facts which, to my mind, are wholly immaterial. I shall therefore endeavor to state the case—which is very simple—in a manner which will clearly present the single question we are called upon to decide:

The petition of the assignee prayed for an order vacating and annulling the order by which he had been discharged, and also prayed for an order setting aside the insolvent’s certificate of discharge. This latter order, it is conceded, the assignee had no right to ask; but the fact that he asked for an order to which he was not entitled was no reason for refusing to vacate the order by which he had been discharged, and, accordingly, the court made such an order, as it had the undoubted right to do, and the effect was to put the insolvency proceeding in the same condition in which' it was before the assignee was discharged. (Rued v.…