Riego v. Foster

Citations

• 125 Cal. 178
• 57 P. 896
• 1899 Cal. LEXIS 822

Syllabus

<p>Action by Assignee in Insolvency—Evidence oe Authority.—In an action by an assignee appointed under proceedings in involuntary insolvency against a partnership, to recover property assigned by the firm, to the defendants, in violation of the insolvent act, within one month prior to the filing of the petition by the creditors, a certified copy of the assignment to the assignee is conclusive evidence of the right of the assignee to bring the action.</p> <p>Id.—Collateral Attack upon Creditors’ Petition.—Where the insolvency proceedings were regular on their face, they cannot be collaterally attacked by the defendants in an action by the assignee, upon the alleged ground that the signers of the petition were not actually creditors of the insolvents in the' amount required by the Insolvent Act.</p> <p>Id.—Order Striking Out Answer—Definiteness—Presumption upon Appeal.—Where the motion to strike out parts of the answer in such action specifically quoted all the parts of the answer sought to be stricken out, and the court granted the motion as to all those parts of the answer which attack the validity of thé insolvency proceedings, and denied it otherwise, the order, though it would be in better form if more fully identifying the part stricken out, is not too indefinite to be sustained, and it will be presumed upon appeal in favor of the judgment that the appellants were not deceived or prejudiced by the form of the order.</p> <p>Id.—Findings—Consistency—Transfer out of Usual Course of Business—Freedom from Actual Fraud.—A finding, based upon an admission in the pleadings, that the transfer was not made in the usual and ordinary course of business, and that at the time thereof, defendants knew and had reason to believe that the firm was insolvent, and that the transfer was being made with intent to prefer certain creditors, represented by the defendants, and with a view to prevent the property from coming to the assignee in insolvency, et cetera, is not inconsistent wi