La Point v. Boulware (1894) · DecisionDepot

La Point v. Boulware

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 29, 1894 No. No. 18279Published

Before: Fitzgerald, Haven, Haynes, McFarland, Searls, Vancliee

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Holding. The court held that insolvency proceedings are only commenced upon the filing of a sufficient petition—one upon which a valid adjudication of insolvency can be made—rather than the filing of an insufficient petition. Consequently, because the initial petitions were insufficient and the final sufficient petition was filed more than thirty days after the property transfer, the transfer did not fall within the statutory period for avoidance.

Issues

Whether the filing of an insufficient petition in insolvency constitutes the 'commencement of proceedings' under the Insolvent Act.
Whether an amended petition can relate back to the date of an insufficient original petition to satisfy the thirty-day statutory requirement for avoiding a property transfer.

Disposition. reversed

Quotations verified verbatim against the opinion

“We think this language requires, as the commencement of the proceeding, the filing of a sufficient petition — one upon which a valid adjudication of insolvency may be made.”

“We therefore conclude that the proceedings were not commenced within one month after the sale of the property in question to appellant”

Synopsis

Appeal from a judgment of the Superior Court of Butte County, and from an order denying a new trial.

The facts are stated in the opinion.

Haynes, C. This action was brought by the assignee in insolvency of T. M. Boulware against the defendant, C. N. Boulware, to recover certain personal property alleged to have been transferred to the defendant by the [265]insolvent in payment of a debt within thirty days before the commencement of insolvency proceedings.

The sufficiency of the complaint in this action is assailed by appellant. The complaint here, however, cannot be distinguished from the complaint in La Point, assignee, v. Blanchard, 101 Cal. 549, which was held sufficient.

Appellant also contends that the petition under which T. M. Boulware was adjudged an insolvent was not filed within thirty days after the sale of the horses and wood to the defendant, and that therefore the sale in question does not come within the statute.

The sale was made on or about the first day of September. A petition was filed by creditors on the 10th. On September 27th the court entered an order denying the petition. That order, we think, ended that petition. But on the 29th, and within the time allowed by the court therefor, an amended petition was filed. The so-called amended petition must be taken to be a new petition. The alleged insolvent appeared and filed a general demurrer to the amended petition, and, as that petition was less than thirty days after the transaction, it was in time. But that demurrer was also sustained, and leave given to amend, and the amended petition, under which T. M. Boulware was adjudged an insolvent, was filed on the 28th of November.

The findings show the foregoing facts.

Appellant cites section 61 of the Insolvent Act, which reads as follows: “The filing of the petition by or against a debtor upon which an order of adjudication in insolvency may he made by the court shall be deemed to be the commencement of proceedings in insolvency under this act.”

It is contended that if a petition is filed which is insufficient to justify an order adjudging the defendant an insolvent a new or amended petition which is sufficient cannot take effect by relation as of the date of the original petition, but only from the date of the filing of the sufficient one.

[266]

La Point v. Boulware

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