Farnsworth v. Sutro
Before: Chipman
Synopsis
Action by Assignee of Insolvent—Pleading—Assignment—Qualification Presumed.—In an action by the assignee of an insolvent debtor, from averments of the complaint showing the adjudication in insolvency, and setting forth that the plaintiff was elected assignee in-insolvency, and that the property of the insolvent was assigned to him by the clerk of the court, it must be presumed, in the absence of a special demurrer, that the assignee had previously qualified and given the bond required by the statute as a condition precedent to the assignment alleged.
Id.—Intendments in Support op Judgment.—After judgment in favor of the assignee, all reasonable intendments, in the absence of any special demurrer, will be allowed in support of the regularity of the proceedings, and it will be presumed that the court and clerk acted ■ regularly, and that the conditions precedent to their alleged action had been regularly performed.
CHIPMAN, C.
The complaint set forth that plaintiff Farnsworth and one J. J. Haley, copartners as D. L. Farnsworth & Co., entered into an agreement in writing with defendant, in which it was agreed, among other things, that defendant would pay the said Farnsworth and Haley the sum of five thousand dollars upon the performance by them of certain conditions. After they had fully performed on their part, Haley became insolvent, and the action was brought by Farnsworth and by Humphrey as assignee of Haley. Defendant demurred to the complaint, alleging,—1. That the cause of action is barred-by section 337 of the Code of Civil Procedure; and 2. That the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled and defendant answered. The cause was tried by the court without a jury, and plaintiffs had judgment, from which defendant appeals on the judgment-roll alone.
Appellant contends that the facts averred in the complaint do not show that the plaintiff Humphrey acquired any interest in thr Farnsworth and Haley contract, or that he has any right to sue thereon, because there is no averment that Hum
[243]
phrey ever qualified as an assignee. The allegations of the complaint are: . . . “The said J. J. Haley was, by a decree and order of the superior court of the said city and county, duly adjudged to be an insolvent debtor under the Insolvent Act of 1880, and such proceedings were thereafter had that the plaintiff Edgar C. Humphrey was, in the year 1895, and prior to the filing of this complaint, elected assignee in insolvency of the said J. J. Haley, and thereafter and prior to the filing of this complaint, the clerk of said court, by an instrument under his hand and seal of said court, did assign and convey to the said Edgar C. Humphrey, assignee as aforesaid, all the real and personal property of the said John J. Haley.” The complaint is verified, and these allegations are not denied. The argument of appellant is, that it has been decided that in an action by the assignee of an insolvent the fact of an assignment must be alleged
(King
v.
Felton,
63 Cal. 66); and that it is equally essential that the assignee should qualify (Insolvent Act, secs. 15, 16); that the act of the clerk in conveying the property to the assignee is merely ministerial, and can only be exercised after the assignee has qualified (sec. 17); that a testamentary executor or guardian cannot act as such until he qualifies and letters are issued to him
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