Seattle Coal & Transportation Co. v. Thomas

Insolvency Act—Bankruptcy Act—Constitutional Law.—It was competent for the Legislature to pass the Insolvency Act of 1876 while the Bankruptcy Act of the United States was in force, but its operation was suspended until the repeal of the Federal law. Verification—Pleading—Surplusage.—A verification is sufficient, which states that the party “has read the foregoing petition, and is acquainted with the contents thereof; that the same is true of his own knowledge and belief.” The words “ and belief” may be treated as surplusage. Id.—Id.—Demurrer.—An objection to a verification cannot be heard on demurrer. Insolvency Act—Petition.—An allegation in a petition in insolvency held to sufficiently show that certain debts were due.

Appeal from a judgment, in the County Court of the County of Alameda. Redman, J. This is a proceeding in involuntary insolvency, under the Act of March 31st, 1876. On the 12tli of August, 1879, the petitioner, the Seattle Coal and Transportation Company, filed its petition, praying that the respondent, F. E. Thomas, be adjudged insolvent. The petition set forth, that one item of the indebtedness of Thomas arose upon a promissory note, dated February, 1879, and payable one year after its date. And the remaining indebtedness is set forth as follows; “ That Francis E. Thomas, of the said county of Alameda, is indebted to your petitioners as follows, and that the nature of your petitioners’ demands is as follows: The said Francis E. Thomas is indebted to the said Seattle Coal and Transportation Company in the sum of $1,884.25, being the value of tons of coal; that said coal was delivered to the said Thomas, together with a larger amount of coal, to be by said Thomas placed and kept on storage for the said Seattle Coal and Transportation Company, and the same was received by the said Thomas, and stored as aforesaid; and thereafter the said Thomas, without authority, and without the knowledge and consent of the said corporation, sold the said 814|-§f $ tons of coal, and converted the purchase-money to his own use; and no part of the same has been paid to the said corporation. “That the said Francis E. Thomas is indebted to the said Charles A. Sessions in the sum of $285.75, for coal sold and delivered by the Empire Coal Mine and Railroad Company to said Thomas, at his request, between July 1st, 1879, and July 80th, 1879 ; and that said claim of indebtedness has been duly assigned by said Empire Coal Mine and Railroad Company to said Sessions, who is now the legal owner and holder thereof; and that no part of said sum of $285.75 has been paid, but the same is now wholly due and unpaid. “ That the said Francis E. Thomas is indebted to the said Henry C. Wright in the sum of $2,256.76, upon a promissory note, dated San Francisco, July 8th, 1879, given by the said Thomas, payable to the said Seattle Coal and Transportation Company thirty days after its date, and indorsed by said corporation to said Henry C. Wright, who is now the legal owner and holder thereof; and that no part of said note or of the interest thereon has been paid. “ That the said Francis E. Thomas is indebted to the Renton Coal Company in the sum of $1,063, for so much money had and received by the said Thomas during the months of September, October, November, December, 1877, and the months of January and February, 1878, to and for the use of the said Renton Coal Company; and that no part of said sum of $1,063 has been paid.” A demurrer was interposed to the petition, and was sustained, and judgment was entered dismissing the petition.