122 Cal. 216 | Cal. | 1898
Lead Opinion
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.)
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
The respondent cites Creditors v. Consumers’ Lumber Co., 98 Cal. 318, and Dixon v. Allen, 69 Cal. 528, to the proposition that the requirement of the bond is not jurisdictional. Those cases merely hold that the bond being for the benefit and security of the person against whom the proceeding is taken, he can waive defects in the bond or delay in filing it, but they do not countenance the claim that in this proceeding the superior court has the power to make a decree of insolvency in the absence of a' bond, and over the specific objection that no bond has been given. Grant that a bond may be waived, there is here a direct allegation showing that it has not been waived, but is, on the contrary, insisted upon, and the proceeding being special and statutory the attempt to proceed without a bond is an excess of jurisdiction.
And this particular excess of jurisdiction is one for which an' appeal is a wholly inadequate remedy. The only effect of an appeal would be to reverse the adjudication of insolvency, but in the mean time the petitioners would have incurred costs and damages,
The judgment is that the respondent be, and it is hereby, prohibited from proceeding upon the so-called third amended petition in the matter of Anderson and Berry, insolvent debtors, as an amendment to the original petition therein, or otherwise than as a new and independent proceeding.
Temple., J., Harrison, J., McFarland, J., Van Fleet, J., and Henshaw, J., concurred.
Concurrence Opinion
I concur in the foregoing opinion and judgment. Matter of Visalia Water Co., 119 Cal. 561. is direct authority upon the question.