In re Muller & Kennedy

THE COURT. When this ease was in Department tbe opinion hereto attached was prepared by the commissioners, and, tbe justices of tbe Department not being able to agree as to the [433]proper disposition of the appeal, the case was ordered into Bank. After due consideration of the case in Bank, we are satisfied with the conclusion reached by the commissioners; and for the reasons given in their opinion the judgment is affirmed. The opinion prepared by the commissioners is as follows:

SEAELS, C. “This is an appeal by petitioning creditors from an order of the superior court in and for the county of San Joaquin refusing an adjudication of insolvency, and from a final judgment in favor of respondents for their costs.

“The appeal was taken within sixty days after the rendition of judgment, and is supported by a bill of exceptions.

“The petition alleges two distinct acts or grounds of insolvency on the part of Muller & Kennedy, the respondents, viz: 1. A transfer of their property on the nineteenth day of July, 1895, at the city of Stockton, with intent to hinder, delay, and defraud their creditors; 8. A transfer of the same property (a stock of groceries) in contemplation of insolvency.

“Defendants answered, denying the material allegations of the petition. The court found in substance as follows: 1. That on the nineteenth day of July, 1895, respondents, as partners, made a transfer of their property, viz., a stock of groceries, provisions, and other merchandise in the business conducted by them at Stockton, to one Kate Murray; said transfer was not made to hinder or delay or defraud their creditors; 8. That at the time of such transfer said respondents were and now axe insolvent, and they had not then, and have not now, sufficient property with which to satisfy the claims and demands of the petitioners in this proceeding; 3. The third is the same as the first as regards the assignment to Kate Murray, with the addition that the ‘sale, conveyance, and transfer was not made in contemplation of insolvency’; 4. The fourth is in substance the same as the second.

“Upon these facts the court drew the conclusion of law that the proceeding should be dismissed and that respondents have their costs.

“The first point made by appellants for reversal is, that the evidence is insufficient to justify the finding that the conveyance was not made with intent to hinder or delay or defraud creditors.