Smith v. His Creditors

Sharpstein, J.: The petition of the insolvent is indorsed “Filed this twenty-sixth day of May, 1879,” and the order for creditors to show [268]cause, etc., is “Dated twenty-seventh day of February, 1879,” but indorsed “Filed May 27th, 1879.” The order purports to, have been made “upon reading and filing the petition, schedules, and oath of the above-named insolvent.” The petition is dated, sworn to, and filed on the twenty-sixth day of May, 1879—the day before the order was filed. If the order had in fact been made on the twenty-seventh day of February, 1879, the recital above referred to would be false. On the other hand, if the order was made on the day on which it appears to have been filed the recital in it is true, and the date erroneous. We think that the error is of such a character that it may be corrected by the record, which shows unmistakably that the order was not made until after the petition had been filed.

The demurrer to the petition was properly overruled. The insolvent law of this State was not repealed by the passage of the Federal Bankrupt Law, but the operation of the State Law was suspended after the passage and until the repeal of said Bankrupt Law, when it, the State Law, again became operative as to debts contracted during such suspension, as well as to other debts contracted after its passage. (Boedefield v. Reed, 55 Cal. 299; Lewis v. County Court of Santa Cruz County, 6 P. C. L. J. 326; Seattle Coal and T. Co. v. Thomas, 7 id. 199.)

There was an opposition filed to the discharge of the petitioner, which alleged, among other things, that the petitioner, after filing his petition, had collected of one Btannen a debt of twelve dollars, due from him to said petitioner, which he had not paid to the assignee or given any account of, with intent to defraud his creditors, etc. The answer to the opposition admits that the petitioner did receive ten dollars and fifty cents from Brannen after the petition was filed, and that the amount so received was not paid to the assignee, but denies that there was any fraudulent intent or attempt at concealment, and the jury found that the petitioner did not conceal any portion of his property or money with intent to keep it from his creditors. In view of this finding of the jury, and the smallness of the sum, we do not think that the order appealed from should be reversed.

Order affirmed.

Thornton, J., and Myrick, J., concurred.