Sanborn v. Doe

De Haven, J. The defendants were copartners on November 11, 1886, and on that day filed in the superior court of Mendocino County their petition in insolvency, and such proceedings were had therein that on May 4, 1887, the court duly made and entered its decree discharging them from all their debts and liabilities. [153]The plaintiff was not at that date a creditor of either of said defendants, but thereafter several of those who were such creditors, and whose claims were discharged by said decree, assigned their claims to plaintiff, and he thereupon commenced this action to set aside the said order or decree of discharge, upon the alleged ground that certain creditors were improperly influenced not to oppose the same, and that therefore the said decree was fraudulent.

A demurrer to the complaint was sustained, and judgment thereupon rendered in favor of defendants. The plaintiff appeals.

The demurrer was properly sustained. Section 53 of the Insolvent Act of 1880 provides: “Any creditor of said debtor, whose debt was proved, or provable, against the estate in insolvency, who shall see fit to contest the validity of such discharge on the ground that it was fraudulently obtained, and who has discovered the facts constituting the fraud subsequent to the discharge, may, at any time within two years after the date thereof, apply to the court which granted it to set aside and annul the same; or if the same shall have been pleaded, the effect thereof may be avoided collaterally upon any such grounds.”

The plaintiff was not a creditor of defendants, having a debt which “ was proved or provable ” against their estate in insolvency at the date of the rendition of the judgment, which he now seeks to set aside; and not being such a creditor, he is not one of the persons authorized to maintain such an action by the section of the insolvent act just quoted. And independently of the statute, the complaint fails to state facts sufficient to entitle plaintiff to the relief which he asks. Not being a creditor of defendants, when the decree of discharge in the insolvency proceeding was given and made, the plaintiff was not in any way injured by it, and had no right to complain of it, and he did not acquire such right by his subsequent purchase of the claims referred to in the complaint. It is true the assignors of plaintiff would, upon [154]