In re Thomas

44 P. 327 | Cal. | 1896

PER CURIAM.

This is an appeal by a creditor from an order adjudicating one Thomas an insolvent debtor. It is insisted that the court had no jurisdiction to make the order of adjudication, by reason of a want of sufficient averment of facts in the petition of the insolvent. Insolvent act, section 2 (Append. Code Civ. Proc.), provides: “An insolvent debtor, owing debts exceeding in amount the sum of three hundred dollars, may apply by petition to the superior court of the county or city and county in which he has resided for six months next preceding the filing of his petition to be discharged from his debts and liabilities.” It is now claimed that the petition only showed that the insolvent had resided in the county for six months next preceding his signing and verifying the petition. The latter portion of section 2 sets forth the particular matters which must he alleged by the petition of the insolvent, and that provision says he must “set forth his place of residence.” There is no requirement that he must state in his petition that he has resided in the county where the petition is filed six months next preceding the filing thereof, and we hold that an averment to that effect is not required. Subsequently to the adjudication, if creditors desire to contest that question of fact, the road is plain to them. A statement in the petition to that effect would not he conclusive upon the creditors, for they could attack its truth at a subsequent stage of the proceedings; and it is the fact of an immediate preceding residence of six months in the county where the petition is filed, and not the allegation to that effect, that is jurisdictional. We see no substantial merit in this appeal. For the foregoing reasons the order appealed from is affirmed.