Estudillo v. Meyerstein

Belcher, C. C. This is an action to set aside and annul the discharge from their debts, granted to the defendants in certain insolvency proceedings under the [318]Insolvent Act of 1880. It is alleged in the complaint that on the seventeenth day of February, 1885, the defendants were doing business as partners, and the plaintiff had a claim against them, which was provable against their estate in insolvency; that on that day a creditors’ petition was filed against them, upon which they were, on the 6th of March, 1885, adjudged insolvents; that thereafter they applied for their discharge, and on the 27th of August, 1885, the court duly made an order discharging them from all their individual and partnership debts, in accordance with the provisions of the Insolvent Act. It is then alleged, as ground for setting aside and annulling the discharge, that while the proceedings in insolvency were pending, and prior to the granting of the discharge, the defendants, and each of them, promised ■ and agreed to and with two of their creditors, 0. Jansen and E. Sommer, that, if they would not oppose the application for discharge, then the defendants, in consideration thereof, would, after the granting of such discharge, pay to the said creditors the full amounts respectively due them; that these promises and agreements were made with the intent and for the purpose of influencing the action of Jansen and Sommer, and of inducing them, and each of them, not to oppose, delay, or obstruct the granting of a discharge to the defendants; that Jansen and Sommer, prior and up to the time of the making of sajd promise and agreement, intended, in good faith and upon what they deemed good and sufficient grounds, to oppose the granting of a discharge to either of the defendants, and that they would have opposed it but for the said promise and agreement; that they relied upon the said promise and agreement, and were thereby influenced and induced not to oppose the discharge of defendants; that the discharge was thus fraudulently obtained; and that plaintiff had no notice or information of the facts constituting the fraud until after the discharge was granted.

[319]The defendants demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and thereupon defendants answered specifically, denying that they made any promise to Jansen or Sommer, or influenced them in any way, or to any extent, not to oppose their discharge. Upon the trial the court found against the defendants, and adjudged that their discharge be set aside and annulled. The appeal is from the judgment and an order denying a new trial.