In re Nicolin

Collins, J. Disregarding the claim of the counsel for respondents that upon the record, as presented on this appeal, there is nothing for us to review, we come directly to a consideration of the main question, and this involves a construction of the word “creditors,” as used in Laws 1889, ch. 30, § 6, (an amendment to the insolvency law of 1881, ch. 148.) It is provided in said section that, upon the petition [133] of a majority in number and in amount of tbe creditors, it shall be tbe duty of tbe court to remore any assignee or receirer appointed under tbe provisions of tbe statute, and to appoint another person to tbe place. It stands conceded that when tbe petition was filed asking for tbe removal of tbe assignee named in tbe deed of assignment, who bad qualified and entered upon tbe discharge of bis duties, and at the time tbe petition was acted upon by tbe court, tbe original assignee being removed, no claims of any description bad been filed with tbe assignee for allowance against tbe estate. Tbe contention of counsel for appellants is that with this condition of affairs there were no “creditors,” within tbe meaning of tbe statute, and consequently none qualified to sign a petition for tbe removal of their client. With this view of tbe law tbe court below acquired no jurisdiction of tbe subject-matter, and its order could not be sustained. In tbe ordinary and almost universal definition of tbe word, a “creditor” is a person to whom a debt is owing by- another person, called a “debtor;” and, unless it clearly appears that it was. used in a different sense in tbe statute now under consideration, we should give tbe word its usual and generally accepted meaning, although it is not an uncommon thing for courts to construe words as having been used in legislative enactments in a limited sense, and with a special or restricted meaning. Two instances may here be referred to where this court when construing this same word, “creditors,” as used in other sections of tbe insolvency act, has held that the popular meaning just mentioned was not intended. Adamson v. Cheney, 35 Minn. 474, (29 N. W. Rep. 71;) Olsen v. O'Brien, 46 Minn. S7, (48 N. W. Rep. 453.) But tbe reasons for declaring that tbe word bad a special and limited meaning as used in tbe sections then being considered are obvious, and neither of tbe cases are in point here. Nor are tbe decisions under tbe national bankruptcy act of 1867, cited by counsel, of value in support of their position, as will be seen upon an examination of tbe provisions of tbe act itself, regulating tbe manner in which assignees were to be selected. Tbe creditors referred to in tbe statute of 1889, and upon whom is conferred tbe right to petition for tbe removal of an assignee or receiver, are all persons to whom tbe insolvent may be indebted. The fact of indebtedness, and another essential fact, under tbe [134] statute, namely, that a majority in numbers and in amount oí the creditors have signed the petition, are to be ascertained and determined by the court upon the production of competent proofs upon the hearing of the petition, and this hearing may properly be had upon order to show cause. No injustice can . result to an insolvent or to an assignee or to a receiver by this course of procedure, and the plain purpose of the statute would frequently be frustrated if actual creditors could not petition for the removal of an obnoxious or incompetent person selected by the insolvent himself as assignee, or suggested to the court by some friendly creditor as a receiver, until after their claims had been filed, or, perhaps, as intimated by appellants’ counsel, not until such claims had been allowed by the as-signee or receiver. Creditors cannot be put at the mercy of assignees or receivers in this way. Valuable rights might be lost, and valuable estates absolutely wasted, before creditors could avail themselves of the statutory remedy, if the construction contended for by counsel should be adopted, and the clear intent of the statute is to the contrary. (Opinion published 56 N. W. Rep. 587.) The court below proceeded to a consideration of the petition upon an order to show cause, and found that a majority of the creditors, in number and in amount, had signed the same. There is nothing in the record tending to show that the court erred in its conclusion, or reached it in an improper manner. Order affirmed.