The record-union., 1894-03-07
SUPREME COURT DECISIONS.
A Slskiyou County Insolvency Case
Decided.
The Validity of Homestead Filing
Depends Upon What the Prop
erty is Used For.

The Supreme Court has rendered de-
cision in the case of the estate of J. E.
Mcdowell, an insolvent, being an appeal
by Mcdowell from an order refusing to
set apart to him certain real estate as a
homestead.
Appellant was adjudged to be an lnsol-
vent debtor on January q, 1893, by the
Superior Court of Siskiyou County. AT
that time he was owner of the property
In question, which consisted of land and
building thereon in the town of Sisson.
Ten days afterwards he filed petition
asking to have the property set aside to
him as homestead. Some of his cred
itors opposed it and after hearing the
court denied the request.
The Superior Court found that McDow-
ell built and conducted the Ell Monte
Hotel on the property in 1887. His wife
died in 1889, at Los Angeles, leaving a
female child, who was taken subse-
Quently to Sisson and kept there about
two months and returned to Los Angeles.
On November 20, 1889, Mcdowell filed a
declaration of homestead and had II re-
corded, and in 1890 leased the whole of
the premises as a hotel for one year, and
did not in the lease reserve any portion
TOR his own use.
1t further found that the hotel had, ever
since its construction in 1887, been leased
primarily as q hotel and not as home of
Mcdowell, and that his residence therein
had been for the purpose of managing
1t and for no other purpose.
As conclusion of law, therefore, it
found that Mcdowell, at the time he filed
The homestead, was not entitled under
the law to file the declaration, and is not
now entitled 10 have it set apart as a
homestead.
The appellant argued that these find
1ngs were not justified by the evidence.
and the conclusions of law were not sup
ported by the facts found
The Supreme Court quotes the Ian
guage of the rule declared in Mclaughlin
VS.. Wright, 63 Cal. 113, that 1.-The use of
the property is an important element to
be considered" Upon this authority the
order appealed from is confirmed.
ASSIGNEE AND INsoLVENT.
A decision has also been rendered in
the case of Malcomb Stewart. assignee,
ETC., and respondent, VS.. Herman Dun
lap, appellant, an action brought as as
signee of the estate of w. c. Baber, ana
insolvent debtor, to recover the value of
personal property alleged to have be-
longed to the estate, and to have been
converted to his own use by the defend
ant.
The complaint averred that certain
creditors of Baber filed petition in in
voluntary insolvency against him, and
the court ordered him to file a schedule
and inventory of his property with the
clerk. He did so, and the assignee was
duly elected by the creditors, and the real
and personal property of the lnsolvent
was duly turned over TO him by the clerk.
No demurrer was interposed and the
answer denied none of the averments in
the complaint and judgment was given to
the plaintiff, from which the defendant
appealed on the judgment roll.
The point made was that there did not
appear that the court ever acquired juris-
diction of the insoivent in Insolvency
proceedings, for the reason that the COM
plant contains no averment, showing
that a copy of the petition filed by the
creditors was served upon him, with
copy of the order to show cause, as re-
quired by Section 10 of the Insolvent
Act.
The court holds that the record is sim
ply silent on the subject, and that he ap-
peared and filed the schedule and in
ventory and thereby voluntarily sub
mitted himself to the Jurisdiction of the
court.
The law presumes that court or Judge,
acting as such, was acting in the lawful
exercise of his jurisdiction, and under the
circumstances shown it is too late to raise
the question of the jurisdiction of the
court here.
The judgment is therefore affirmed.