Anderson v. Superior Court of Lassen County

BEATTY, C. J. The petitioners ask for a writ of prohibition to restrain the superior court from proceeding against them as involuntary insolvents, upon the ground that the court has acted, .and is threatening to act, in excess of its jurisdiction. Upon the filing of the petition an alternative writ was issued, and the return thereto consists merely of a general demurrer to the petition. The question is, whether the facts alleged show any excess, or threatened excess, of jurisdiction, for which the petitioners have no plain, speedy, and adequate remedy in the ordinary course of law. (Code of Civ. Proc. secs. 1102, 1103.)

[217]The material facts are that in October, 1896, five persons filed a petition in the superior court of Lassen county asking an adjudication of the insolvency of these petitioners. After two amendments to that petition a trial was had which resulted in an adjudication of insolvency, but a motion for a new trial was granted and that judgment vacated upon the ground that these petitioners were not indebted to the petitioning creditors therein in the sum of five hundred dollars at the time their second amended petition was filed. When the matter again came on for hearing in pursuance of the order for a new trial, the original five petitioning creditors were permitted, against the objection of these petitioners, to file a third amended petition, in which four new parties were joined as petitioning creditors and their claims set forth. Ho new bond accompanied this petition, nor was any new citation served or issued thereon. The alleged insolvents (these petitioners) objected at the time the third amended petition was presented—and have since renewed the objection in various forms—to allowing new petitioning creditors to be brought in by way of amendment. They contend that the law does not permit such an amendment—that the addition of new petitioning creditors constitutes it a new and distinct proceeding, and consequently that the court cannot proceed without a new bond and a new citation. These objections were overruled by the superior court as often as they were made and the petitioners required to answer the third petition. The superior court threatens and intends to proceed upon the third amended petition in insolvency, not as upon a new petition, but as upon a proper amendment of the original petition, and without requiring any new bond or new citation.

The conditions upon which a person may be forced into insolvency and his property sequestrated for the benefit of his creditors are prescribed by the statute. Considering the serious consequences to the supposed insolvent and to those who have dealt with him, the conditions imposed by the statute are not onerous, and there is no reason why they should be disregarded. One of the conditions required is, that five creditors should unite in the petition and that they should hold claims to the amount of five hundred dollars. It was not intended that less than five Iona fide creditors, or creditors in a less amount than five hund