Luhrs v. Kelly

Belcher, C. C. This is an action commenced by the plaintiff, as assignee of one S. J. Dierssen, an insolvent debtor, to recover the value of four barrels of whiskey and certain other personal property alleged to have been transferred by the insolvent to the defendant in violation of the provisions of section 55 of the Insolvent Act of 1880. The insolvency proceedings were involuntary, and every step taken in them was alleged in the complaint and denied in the answer.

When the case came on for trial, the plaintiff offered in evidence the petition in insolvency, the bond accompanying the petition, the order to show cause with the return of service thereof on the respondent, the order, adjudging the respondent to be an insolvent debtor, and requiring him to file a schedule and inventory of his property, with the return of service thereof, the order appointing the plaintiff assignee, the bond of the assignee and a certified copy of the assignment made by the clerk of the court to the plaintiff as assignee. The defendant objected to the evidence upon the ground that it was irrelevant and immaterial, and that the proceeding did not conform to the requirements of the insolvent law. The court overruled the objections and admitted the evidence. We see no error in the rulings.

The petition was properly signed, verified, and filed. A copy of the petition and a copy of the order to show cause were regularly served on the debtor in the manner provided by law for the service of summons in civil actions. This gave the court [291]jurisdiction of the case (Ohleyer v. Bunce, 65 Cal. 544), and for errors afterward committed, its proceedings could not be assailed collaterally. The order to show cause required the debtor to appear on the 28th day of December. He did not appear, and the order adjudging him. an insolvent was entered on the 3d day of January. There was nothing in this delay of which the defendant could take advantage.

As appears by the record the order appointing the plaintiff assignee required him to give a bond in the sum of $2,000. On the next day he gave a bond in the sum of $500, and it was approved by the judge and filed. In the assignment made by the clerk it is recited that the assignee had “ filed a bond in the sum of $500 as ordered by the court.” There was here evidently some mistake, but it was one which did not concern the defendant. The creditors and debtor were alone interested in the amount and sufficiency of the bond, and they acquiesced in the bond given. The court had jurisdiction, and its approvál of the bond was sufficient to justify and make valid the assignment as against a mere collateral attack.