Mogk v. Peterson

Hayne, C. Action by the assignee of an insolvent to recover the value of certain property which is claimed to have been transferred to the defendant in fraud of the rights of the creditors. The court below gave judgment for a portion only of the amount claimed, and each side appeals.

Upon the appeal of the plaintiff, the question is, whether the court was right in holding that part of the property transferred was exempt from execution, and therefore not a part of the property to which plaintiff was entitled as assignee. The findings state that all this portion of the property consisted of “farming implements,” and that “ at the time of the transfer of said property, said Coombs was, by occupation, a farmer, and used all of said last-described articles in his business of farming,” and that each article thereof “was, at the time the same was sold and transferred by said Coombs to said defendant, exempt from forced sale and execution.”

The appeal was from the judgment alone, and was not taken within sixty days from its rendition; hence the findings must be taken as conclusive. (Code Civ. Proc., sec. 939, subd. 1.) Taking the above finding to be true, it is manifest that this part of the judgment was correct. For [498]the statute provides that “such assignment shall operate to vest in the assignee all the estate of the insolvent debtor not exempt by law from execution” (sec. 17); and that the assignee shall have power to take possession of “all the estate of such debtor except property exempt by law from execution(Sec. 21, subd. 2.)

The clerk had no authority to transfer exempt property to the plaintiff, and therefore the plaintiff can claim nothing by virtue of the transfer.

Upon the appeal of the defendant several points are made: —

1. It is said that the petition in insolvency does not show the facts necessary to confer jurisdiction upon the court in which the insolvency proceedingwas commenced. The particular matters in which the petition is claimed to be insufficient are, in the first place, that it merely alleges that the insolvent was “indebted” to the petitioners, etc., without stating the facts out of which such indebtedness arose, and that hence it is within the rule laid down in In the Matter of Russell, 70 Cal. 132; and in the second place, that it does not show that the debtor was insolvent within the meaning of the act, because it merely alleges that he “was on the twenty-ninth day of September, 1884, insolvent, and has suffered his property to remain under attachment or legal process for moré than four days, and attempted to conceal some of his property to avoid its being attached,” without showing that he was insolvent at the time he suffered his property to remain attached. And further, that the allegation as to concealment was not that he did conceal, etc., but that he attempted to conceal.