Dennery v. Superior Court of Sacramento County
Before: McFarland
Synopsis
Insolvency — Appeal from Adjudication — Bond — Stay of Proceedings— Jurisdiction—Receiver. — An appeal from an order granting an adjudication of insolvency is regulated by the general law for appeals in civil causes; and not being a ease in which a separate stay bond is required, the ordinary appeal bond operates to stay all further proceedings upon the order appealed from, or the matters embraced therein. The superior court has no jurisdiction pending the appeal to compel the insolvent to prepare and file his inventory and schedules, or. to proceed to the selection of an assignee, or to call a meeting of creditors, or to do any further thing in the proceeding in insolvency except only such things as may be necessary to be done through a receiver for.taking and preserving the property of the insolvent. The functions of a receiver are not suspended by such appeal.
Id.—Powers of Receiver — Recovery and Control of Assets— Actions. —The functions of a receiver depend very much upon the powers conferred by statute. A receiver has power under the general laws of this state to bring and defend actions in his own name as receiver, to take and keep possession of the property, to receive rents, collect and compromise debts, to make transfers, and generally to do such acts respecting the property as the court may authorize. By means of a receiver, the superior court may in an insolvency proceeding fully take possession of and preserve the property of the insolvent, and protect the rights of creditors; and a receiver appointed in such proceeding may maintain an action to recover the assets of the insolvent, or any property which may have been fraudulently conveyed by him, and may apply for an examination of the insolvent touching his affairs.
McFarland, J. This is an application for a writ of prohibition to restrain respondent from continuing certain proceedings in a case of involuntary insolvency, after an appeal to this court by petitioner from a decree declaring him an insolvent.
From the petition and answer it appears that certain creditors of petitioner filed a petition in the court of respondent, praying to have petitioner herein (Dennery) adjudicated an insolvent debtor. After a contest on the issue of insolvency, the court, on November 22, 1889, rendered a judgment and decree adjudging that petitioner was an insolvent debtor, directing that he file his inventory and schedules within five days, and fixing a day, viz., January 3, 1890, for the meeting of creditors to choose an assignee. On December 2,1889, petitioner filed and served, a notice of appeal from said judgment, and on the next day filed a sufficient undertaking on appeal in the sum of three hundred dollars. The petition avers that notice of the day for the meeting of creditors to choose an assignee is being published, and that an assignee will be chosen unless the writ prayed for herein issue; that petitioner has been cited for contempt for not filing his inventory, and will be held for such contempt, and that respondent is pursuing said insolvency proceeding in other respects as though no appeal had been taken. Respondent practically admits these averments, and asks to be advised in the premises. It further appears that, prior to the judgment of insolvency, the respondent had appointed George 0. McMullin receiver of the property and estate of the petitioner, with directions to take and keep possession of said property, [9]and to “do such other acts in relation thereto as the court from time to time should authorize and direct”; that said order “is still in full force and effect”; and that said McMullin has “qualified and entered upon the discharge of his duties as such receiver.”
Section 67 of the state insolvent act of 1880 provides that “an appeal may be taken to the supremo court in the following cases: 1. From an order granting or refusing an adjudication of insolvency.” And the section further provides that “the notice, undertaking, and procedure on appeal shall conform to the general laws of this state regulating appeals in civil cases.”
The general laws regulating appeals are found in the Code of Civil Procedure, from section 936 to section 980. The general provision is, that an appeal is perfected by serving and filing a notice of appeal, and filing an undertaking in the sum of three hundred dollars. By several sections immediately preceding section 946, it is provided that in several enumerated cases the appeal shall not stay the judgment or proceedings unless an additional bond be given in an amount either fixed by the code or to be determined by the court. And by section 946 it is provided that “whenever.an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein; .... but the court below may proceed upon any other matter embraced in the action, and not affected by the order appealed from.” We think it clear that the appeal in the case at bar does not come within any of the enumerated cases in which an additional undertaking is required to stay the execution of the judgment; and the appeal having been “perfected” in accordance with the requirements of the code, it stays all further proceedings upon the judgment appealed from, and “upon the matters embraced therein.” To afterward compel the petitioner to prepare and file
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