In re Dennery

Garoutte, J.— This is an appeal from an order of the superior court of Sacramento County adjudging appellant an insolvent debtor upon petition of his creditors. In the lower court a demurrer was interposed, which was overruled. The defendant then answered, setting up, among other things, a failure by the petitioning copartnership firms to make, file, or publish any certificate of their copartnership. Petitioners’ demurrer to the answer was sustained, and an amended answer was filed, and the matter was heard upon the petition and amended answer.

The demurrer to the petition was properly overruled. The petition sets forth every fact required to be set forth by section 8 of the Insolvent Act, and in addition alleges that the petitioners are creditors of the said Dennery, and the nature of their respective demands is as follows: “ The demand of said G. L. Jones & Co. is for $206.25, United States gold coin, and accrued for goods, wares, and merchandise sold and delivered, at San Francisco aforesaid, by them to said respondent, within one year last past, at his request.” The claims of the other petitioners are set out in the same manner.

We think the foregoing statement sufficient.

“ Insolvency proceedings in bankruptcy are not in any sense proceedings merely for the collection or security of the particular demand of the petitioning creditors. They are for the benefit of all the creditors. The fact that the petitioning creditor has a provable debt of the requisite amount is necessary to be shown for two purposes only. The first, to show that the alleged debt occupies that relation; second, that the petitioner has the requisite qualification to commence the proceeding.

[105]Its office is then exhausted, and it has not, and is never given, any other force or effect. (In re Sheehan, 8 Bank. Reg. 245.)

The form of the petition in the case at bar is practically the same as found under the United States bankrupt act, and which is designated “Form No. 54.” (Bump’s Bankruptcy, 9th ed., 933.)

A creditor who can file a petition for involuntary bankruptcy is one whose demand is provable under the act. (Phelps v. Classen, 3 Bank. Reg. 87.)

Section 37 of the Insolvency Act provides that all debts not payable until a future time may be proved against the estate of the debtor; hence it follows that a creditor may join in the petition, although his demand is not yet due. And for these reasons it does not appear necessary to allege, in the petition of insolvency, a breach of the insolvent’s contract, namely, that the debt is due and unpaid; but be that as it may, these petitioners each allege a demand against the insolvent, and set out the nature of it, which would seem to be ample to put the insolvent upon his defense. In the case of Campbell v. Judd, 7 West Coast Rep. 372, the court held the petition sufficient, where the facts alleged as to the nature of the demand were much more meager than in the present case.