IN RE: ROSS.†

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District Court of Appeal, Second District, Division 1, California.

IN RE: ROSS.†

Civ. 10211.

Decided: July 08, 1936

David Tannenbaum, of Los Angeles, for appellant. Everett W. Mattoon, Co. Counsel, and Fred M. Cross, Deputy Co. Counsel, both of Los Angeles, for respondent superior court.

This is an appeal from a “decree” rendered by the superior court, by which the application of Keith Macaulay Ross for change of name to that of Ian Keith was denied.

The foundational statutes, on the provisions of which in proper and appropriate circumstances both the substantive right of an individual to an official change of his name and the necessary legal procedure incident to such a change depend, are set forth within sections 1275 to 1279, inclusive, of the Code of Civil Procedure. Among other clauses, the following appears in section 1278 of the Code of Civil Procedure: “On the hearing, the court may examine on oath any of the petitioners, remonstrants, or other persons, touching the application, and may make an order changing the name, or dismissing the application, as to the court may seem right and proper.”

By respective counsel it is admitted that in accordance with the terms of the statute to which reference just has been had, a determination of the question of whether a petition for official change of name should be granted rests within the sound legal discretion of the trial court. But in that connection, it is contended by appellant that in the instant matter the superior court abused its discretion in that regard.

In a legal sense, in order that an abuse of the discretion that in various statutes is vested in the trial court may be indicated, it is unnecessary that a willful, or an intentional, or an arbitrary, disregard of fundamental legal rights of a party litigant be disclosed or manifested. To justify a conclusion that judicial discretion has been abused, it need only appear that, in the particular circumstances, the evidence legally and fairly considered, in reaching its decision thereon the trial court has exceeded the “bounds of reason.” Sharon v. Sharon, 75 Cal. 1, 48, 16 P. 345; In re Estate of Parker, 186 Cal. 668, 670, 200 P. 619. See, also, Lybecker v. Murray, 58 Cal. 186.

The respect in which it is specifically urged by appellant that the trial court abused its discretion is that within its “decree” the trial court clearly indicated that the reason why the requested change of name was denied the applicant therefor was that, although theretofore, in bankruptcy proceedings, he had been adjudged a bankrupt and therein had been discharged of his debts, thereafter he had not paid the said several debts regarding which he thus had been legally relieved. In that particular, an examination of the “decree” shows that, besides a recital of the finding by the court of various essential jurisdictional facts, the “decree” contains a statement to the effect that, although theretofore petitioner had been adjudged a bankrupt in the state of New York and that “all his debts had been discharged in said bankruptcy proceedings,” it further appeared “that the debts of the petitioner, so discharged in said bankruptcy proceedings, have not been paid.”

It therefore becomes obvious that a decision by this court as to whether, in the premises, the trial court was guilty of an abuse of discretion in denying an official change of name to the petitioner depends upon a determination of the question, measured by the “bounds of reason,” of whether the former adjudication of the bankruptcy of petitioner and, in the particular circumstances, thereafter the failure of the applicant to pay his former debts, furnish a sufficient basis for the “decree” regarding which appellant herein complains.

That, generally speaking, one who has been adjudicated a bankrupt is not to be regarded as “stigmatized” by reason of such adjudication seems to be conceded by respective counsel. However, eliminating from consideration herein the unfavorable common impression (if any) which may exist in the “mind” of the general public regarding either the moral standing or the financial dependability of one who thus has relieved himself of the obligation to pay his just debts, nevertheless, the attitude thereafter manifested by the bankrupt toward his former creditors with respect to the making by the bankrupt of full, fair, and complete reimbursement, and thus in fact procuring a moral discharge of such obligations, necessarily presents a question of the desirability, at least, of aiding one by the machinery afforded by the law in concealing his identity. If, by the process of changing his name, he thus may escape the “odium” (if any) which might attach to him if perchance, after his discharge in bankruptcy proceedings, he were to become rich and quite able financially to pay his former debts, but manifested no intention or desire on his part to reimburse his former creditors for the loss sustained by them by reason of such discharge, it is obvious that in such circumstances neither the law nor equity should be a party to, or lend its affirmative assistance in, bringing about a result that might very properly be subject to adverse criticism. In that connection, as affording a reason why his petition for change of name from that of Keith Macaulay Ross to that of Ian Keith should be granted, in his petition for change of name the petitioner alleged that he had “used the said name of Ian Keith on the stage and in motion picture work for the past 15 years as his professional name so that professionally and otherwise he is known as Ian Keith instead of his original name of Keith Macaulay Ross, and petitioner now desires that the said name of Ian Keith, which has great professional and sentimental value to him and by which he is universally known, be given to him as his true name.”

It is most probable that if the petitioner “has used the said name of Ian Keith * * * in motion picture work for the past 15 years,” his further statement that such assumed name “has great professional * * * value to him” is literally true; from which fact, together with the additional wellknown fact that for “motion picture work,” at least from the standpoint of the general public, extravagant, if not fabulous, compensation ordinarily is made, it would seem inferable that from his great (assumed) earnings, had petitioner possessed a keen perception of his moral obligations to his former creditors, without regard to his legal discharge as a bankrupt, he in truth and in fact might have “made good” their losses; and the fact that from his own admissions he had not done so, has a direct bearing upon the advisability of assisting him in the possible creation by him of new debts, as to which, likewise, he also might seek to evade payment through the convenient machinery of bankruptcy. It is clear that if by legal sanction the petitioner should be permitted to abandon his real name, which presumably was the one under which his former debts were contracted, and thereupon officially to assume a new name, any person from whom the petitioner thereafter might solicit credit, and who by reason of the change of name of the petitioner would be unaware of petitioner's former financial record, thereby, by reason of such situation, might be induced to give credit to the petitioner; whereas, had the assumed creditor either had knowledge of the facts, or had had convenient means by which he might have obtained such knowledge, he would not have extended such credit. Perhaps one of the necessary consequences of an adjudication of bankruptcy as to a given individual is unfair, and therefore is to be regretted; nevertheless it is a wellknown fact in the business world that one who through bankruptcy proceedings has evaded and escaped the payment of his just debts thereafter is not in as favorable a position with respect to his financial rating as is one who never has taken advantage of the bankruptcy laws for the purpose of being relieved from the necessity of discharging his pecuniary obligations. And as far as might concern possible future creditors of the petitioner, the concealment, which might result by or through the means of legal procedure, of that which may be termed the financial identity of petitioner, might well be considered in the nature of a deceit or a fraud upon such possible creditors. Equity will not, nor should the law, knowingly approve of, or participate in, any act or action that either presumably or conceivably may result in the practice of a fraud or an imposition of any kind or character upon an innocent person. As concerns human relationships, the ideal function of the law, as well as the peculiar province of equity, is to assist in, or to correct, to atone for, or to so regulate, the conduct of men in their business contacts one with the other that justice may result therefrom. To knowingly aid the petitioner, by placing the official stamp of judicial approval upon an act of his by means of which he might be enabled, were he so disposed to work financial injury upon any person, would not only be legally intolerable, but as well, would be a defiance of settled and ancient principles of equity. As has been said in the case of Clavey v. Lord, 87 Cal. 413, 419, 25 P. 493, an abuse of discretion can exist only where the action works an injustice. Herein the “decree” does no such thing. On the other hand, it harms no one, and its possible effect possibly may prevent the consummation of an injustice. In the premises, the “bounds of reason” were not exceeded by reason of the ruling of which complaint is made. Not only was the trial court not guilty of an abuse of discretion, but to the contrary, its order was eminently fair and just. In re Hamilton, 10 Abb.N.C.(N.Y.) 79; Matter of Burstein, 69 Misc. 41, 124 N.Y.S. 989. And see, generally, 45 Cor.Jur. 381; Names, +20, Decennial Digests.

The order or “decree” is affirmed.

HOUSER, Presiding Justice.

We concur: YORK, J.; DORAN, J.

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