L. Reder & Co. v. Maas

The opinion of the Court was delivered by Fenner, J. This is a proceeding for a forced surrender under the provisions of Sec. 1781, Rev. Statutes. Under those provisions, it is manifest that the insolvent can only be ordered to make a surrender of his property to his creditors, after he has filed, under order of the court, a schedule of his creditors; after a meeting of said creditors has, under like order, been called; after such meeting has been held and has determined, by a majority in number and amount, that the surrender shall be made; and after the procesverbal of,said meeting has been returned into court and homologated. In the present case, upon the mere filing of the creditor’s petition, *131 tlie Judge entered his order that “ the defendant surrender all her property, rights and credits to her creditors, within ten days from the service upon her of this order, and that within said delay she hie with tho clerk of court a schedule of her creditors, * * and in default thereof, that said debtor be ordered to prison, etc.” The first portion of this order is glaringly illegal, and considered in connection with the penalty, occasioned such irreparable injury as justified the appeal therefrom, which is here presented. In the respect complained of, it must undoubtedly be annulled. It is therefore ordered and decreed, that so much of the order appealed from, as directs defendant to surrender her property, rights and credits to her creditors, be annulled and set aside, and that, in other respects, the order remain undisturbed, plaintiffs and appellees to pay costs of this appeal.