In re Chope

Britt, C. On December 16, 1893, Chope filed in the superior court of Humboldt county a paper purporting to be his voluntary petition in insolvency, and, on the same day, the court made an order under section 6 of the Insolvent Act of 1880, as amended in 1891, declaring him insolvent, fixing January 20, 1894, for the meeting of creditors, and appointing the sheriff of the county a receiver to take possession of his estate and keep the same until the appointment of an assignee. ’On January 11, 1894, Columbus Waterhouse, one of the [632]creditors named in the schedules accompanying said petition, took the present appeal to this court from the said order of December 16th; notice of the appeal was served onno one but the attorney of Chope.

Despondent has moved for a dismissal of the appeal on the grounds: 1. That the notice thereof was not served on the receiver and on the other creditors of the petitioner; and 2. That Waterhouse cannot prosecute the appeal, because, since taking the same, he has proved and filed a claim for his debt in the court below. The motion is not well founded. The notice of appeal from the order adjudicating the petitioner to be insolvent, like similar notices in ordinary civil cases, was to be served on the “adverse party.” (Insolvent Act, sec. 67; Code Civ. Proc., sec. 940.) The receiver appointed by the court was the mere instrument of the law and of the court for the temporary preservation of the debtor’s property, and was in no sense a party to the proceeding adverse to the creditors; it would be as appropriate to call the sheriff or his keeper of attached property a party adverse to the plaintiff or defendant in an action where the process of attachment has been employed. As to the other creditors named in the debtor’s schedule, it is not shown that they had, when the appeal was taken, filed proofs of their claims, or in any manner appeared in the proceeding; they were, therefore, not parties to whom notice of the appeal was requisite. (Chinette v. Conklin, 105 Cal. 465; Code Civ. Proc., sec. 1014.) If it be true that the appellant made claim and proof of his debt in the superior court, the fact does not estop him to pursue his appeal; that proof of claim by the creditor and his right of appeal in such a case may stand together is the necessary postulate of the decision in Stateler v. Superior Court, 107 Cal. 536.

The appellant’s case rests upon certain alleged defects in Chope’s petition. This did not conclude with a formal prayer for the debtor’s discharge, and hence appellant says it was no petition at all; it did, however, contain a distinct averment, as required by section