Opinion
Department One
Appeal from an order of the Superior Court of Santa Barbara County adjudging the insolvency of Ramazzina Brothers, copartners. W. B. Cope, Judge.
COUNSEL:
Insolvency proceedings are special, and everything in support of the jurisdiction must appear affirmatively. (Hastings v. Cunningham , 39 Cal. 142; Vermont Marble Co. v. Superior Court , 99 Cal. 579.) As the petition does not allege that the petitioners were partners, the court had no jurisdiction to adjudge them both insolvents in the same proceedings. (Insolvent Act, 1880, sec. 35.) A party whose assets are forty per cent above his liabilities cannot be said to be insolvent. (Hunt v. His Creditors , 9 Cal. 46.)
Nichols & Storke, for Appellant.
Slade & Armstrong, for Respondent.
If the individual names of partners are given in the title of a cause, followed by the word "partners," the names need not be repeated in the body of the complaint or petition. (King v. Bell, 13 Neb. 409; Wright v. Cohn , 88 Cal. 328; Hallock v. Jaudin , 34 Cal. 167, 174; Alpers v. Schammel , 75 Cal. 590; Wise v. Williams , 72 Cal. 544.)
JUDGES: Garoutte, J. Harrison, J., and Van Fleet, J., concurred.
OPINION
GAROUTTE, Judge
[42 P. 971] This is an appeal by a creditor from an order of the superior court adjudicating the abovenamed parties insolvent debtors. It is claimed that the court had no jurisdiction to make the order, by reason of fatal defects appearing upon the face of the petition.
It is first insisted that the petition does not show that petitioners are partners, but we think that fact sufficiently appears when the entire petition is considered. While a direct allegation to that effect would have been good pleading, yet its absence is not jurisdictional, if the fact fairly appears taking the petition as a whole. Further complaint is made that the petition is ambiguous, indefinite, and unintelligible. While it may well be said to be somewhat crude in many respects, still crudities are not fatal to jurisdiction, and bad grammar used by a pleader does not vitiate a pleading.
It is also insisted that the copartnership of Ramazzina Brothers was not insolvent at the time of the filing of said petition, as shown by a comparison of its assets and liabilities appearing therein. While it does appear therefrom that the valuation of the partnership assets exceeds considerably the liabilities of the partnership, yet the petition further discloses that the partners individually are hopelessly insolvent. The petitioners further allege directly that they are insolvent, and the mere fact that the assets in value exceed their labilities does not prove solvency. Such fact might exist, and often does exist, and still a debtor be entirely insolvent within the purview of the Insolvent Act. A debtor when he is unable to pay his debts from his own means as they become due, is insolvent. (Washburn v. Huntington , 78 Cal. 573; Sacry v. Lobree , 84 Cal. 41.)
The order appealed from is affirmed.