[No. 14754.

In Bank.

May 5, 1892.]

#### F. H. WIDBER, Petitioner, *v.*THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, and JOSEPH H. BUDD, Judge thereof, Respondents.

Writ of Error — Appealable Order — Adjudication in Insolvency.— An order granting or refusing an adjudication in insolvency is an appeal-able order, and therefore a writ of error will not lie.

Id. —Nature of Writ of Error — New Suit — Service of Citation. — A writ of error is not in the nature of a writ of review, but is a new and original suit, in which original process is issued, which must be served upon the defendants in error, and which can only affect parties or strangers from the service of the citation.

Insolvency — Election of Assignee—Vote by Creditor Secured in Part. — A claim against an insolvent debtor, which is secured only in part, may he voted as to the unsecured portion at the election of the assignee.

Writ of error in the Supreme Court to review an order of the Superior Court of San Joaquin County. The facts are stated in the opinion of the court.

*E. S. Heller,*and *Garter & Smith,*for Petitioner.

*Nutter & De Vries,*for Respondents.

Garoutte, J.

This is an original proceeding by writ of error to review the action of the superior court of San Joaquin County in adjudging one W. W. Stockwell an insolvent debtor, and also in allowing one E. R. Stockwell and the Farmers’ and Merchants’ Bank to vote their respective claims held against said insolvent debtor, in the election of an assignee, and in adjudging the election of said E. R. Stockwell as assignee of the estate of said insolvent debtor. Respondent has moved to quash the writ upon various grounds; among others it is insisted that neither the court which committed the alleged error, nor the judge thereof, is a proper party to the proceeding; but that the persons directly interested in the result of this litigation should be made defendants and given an opportunity to be heard before their rights are judicially declared. The controversy upon *431the main questions involved appears to be so entirely without merit that we refrain from considering the motion to quash the writ, and pass directly to the alleged errors of law which we are called upon to review. It is claimed that the court erred in adjudicating Stockwell an insolvent debtor upon his voluntary petition while an involuntary petition therefor was pending before the court. It is also claimed that the court erred in allowing the claim of E. R Stockwell and the claim of the Farmers’ and Merchants’ Bank to be voted for assignee. Counsel insist that such claims were secured claims, and that holders of secured claims are not entitled to participate in the election of an assignee. As to the alleged error in adjudicating Stockwell an insolvent debtor, section 67 of the Insolvent Act provides: “An appeal may be taken to the supreme court,—1. From an order granting or refusing an adjudication in insolvency.” There being an appeal from such order of the court, a writ of error will not lie. *(Sacramento etc. R. R. Co.*v. *Harlan,*24 Cal. 334.) The record and bill of exceptions make it apparent that the claim of E. R Stockwell was not secured, and that the claim of the Farmers’ and Merchants’ Bank was only secured to the extent of $675. There can be no question but that the unsecured portion of this claim could be voted at the election for assignee, and that of itself was sufficient in amount to secure the election of the assignee declared by the court elected. There are many matters discussed in respondents’ brief unnecessary to consider, for the points referred to dispose of the case. The plaintiff in error appears to have considered this proceeding to have been in the nature of a writ of review, but such is not the fact. In *Lessee of Taylor*v. *Boyd,*3 Ohio, 354, 17 Am. Dec. 603, the court said: “In the obvious nature and character of the proceeding, a writ of error is a new and original suit. Original process issues in it and must be served to bring the adverse party into court. The relative character of the parties is changed, new pleadings are made up, and a final judgment upon it, though it may operate upon the original *432cause, is nevertheless a termination of the new suit or process in error.....We adhere to the doctrine that the writ of error is a new suit, and can only affect parties or strangers from the service of the citation.”

Let the writ be dismissed, and respondent have judgment for costs.

Harrison, J., Paterson, J., and Sharpstein, J., concurred.

McFarland, J., concurring.

I concur in the judgment. As to whether or not a writ of error lies, in any case, under our system, I express no opinion.