In Re Mealy

CHIPMAN, C.

Involuntary insolvency. The petitioning creditors had judgment by default, upon demurrer to their petition being overruled, adjudging appellants to be insolvent. The appeal is from this judgment. The points urged on the appeal are: 1. That the demurrer should have been sustained; and

2.

That no sufficient bond was filed.

1. The demurrer was for insufficiency of facts and on the further ground that the petition is uncertain and unintelligible in that it does not state when the alleged assignment, sale, or transfer was made, and is ambiguous for like reason and for the further reason that it does not state to whom said assignment, transfer, sale, and conveyance was made.

The allegation of the petition is: “That said debtors reside and have their place of business in said county of San Bernardino and made an assignment, sale, conveyance, and transfer of their estate, property, rights, and credits with intent to delay, defraud, and hinder their creditors. The said debtors, in contemplation of insolvency, have made a payment and a grant, sale, conveyance, and transfer of their estate, property, rights, and credits.” There is no allegation in the petition that the debtors are or were at any time insolvent, nor is there any allegation that they have assigned or transferred all their property, and there is nothing in the petition to show when the alleged assignment took place, or to whom or what property was transferred. So far as appears, the assignment may have been of some property of insignificant value; and it may have been assigned long before the passage of the act, and the debtors may have been solvent when and after they made the assignment. Section 9 of the Insolvent Act of 1895 (Stats. 1895, p.

[105]

131) provides that an adjudication of insolvency may be made on the petition of five or more creditors. Such petition must set forth “that such person (the debtor) is about to depart from this state, with intent, etc.; or conceals himself to avoid the service of legal process; or conceals or is removing any of his property,” etc. 'These are grounds for the adjudication without regard to the solvency of the debtor. The act proceeds: “Or being insolvent, has suffered his property to remain under attachment or legal process for three days; .... or has made any assignment, gift, sale, conveyance, or transfer of his estate, property, rights, or credits, with intent to delay, defraud, or hinder his creditors.” In these enumerated acts of the debtor the adjudication depends upon the fact of his “being insolvent.” Without an allegation that he did the acts “being insolvent” there would be no sufficient ground alleged for the proceeding, and the petition in the present case rests in part upon the ground last above stated, and is copied from the act. The act proceeds: “Or in contemplation of insolvency, has made any payment, gift, grant, sale, conveyance, or transfer of his estate, property, rights, or credits.” The complaint .alleges “that said debtors, in contemplation of insolvency, have made a payment and a grant, sale,” etc., following the language of the statute. There is nothing to show that these transactions were different from those previously alleged, for in neither case is the time when made, the person to whom made, or the property assigned set forth, or any other means of identification stated; and, so far as the petition shows, these latter transactions may have occurred years prior to the filing of the petition. We think the petition should have shown at least that the transfer was made since the passage of the insolvency act under which the proceeding was brought, if a date no more definite could have been stated, and should have contained some statement of the payment made or property transferred and to whom.