Any number of persons interested may unite as complainants in the bill of complaint; but it shall not be necessary to make any persons defendants, except the debtor and transferee; such bill of complaint shall state the amount of the debts of the defendant debtor, so far as known to the complainant, and in such action the court shall make an order for such of the creditors of the defendant debtor as are not joined as defendants in the bill of complaint, to appear before a master to be appointed by the court and prove their claims before a certain day to be named in the order, notice of which shall be given by advertisement in a newspaper; or if none be published in the county, then by such other mode as the court may judge best calculated to give such creditors actual notice of the order; and in addition to the advertisement in a newspaper, the court may direct publication in other modes. A creditor appearing before the master and presenting his claim shall thereby become a party to the action and be concluded by the final judgment of the court allowing or rejecting his claim. Any creditor who shall fail to appear and prove his claim agreeable to such order shall be precluded from participation in the distribution of the assets of the debtor hereinafter provided for.
History: Laws 1889, ch. 67, § 3; C.L. 1897, § 2820; Code 1915, § 276; C.S. 1929, § 7-103; 1941 Comp., § 23-103; 1953 Comp., § 27-1-3.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes. — Rule 1-007A NMRA designates the allowed pleadings and speaks of a "complaint," not a "bill of complaint." Rule 1-003 NMRA provides that a complaint commences a civil action.
Cross references. — For publication of notice, see Chapter 14, Article 11 NMSA 1978.
For joinder of parties, see Rule 1-020A NMRA.
For class actions, see Rule 1-023 NMRA.
A creditor does not have to secure judgment before he can go into court to set aside a fraudulent conveyance; it is not the existence or non-existence of the debt which gives the court jurisdiction, but the fraudulent conveyance. Grunsfeld Bros. v. Brownell, 1904-NMSC-014, 12 N.M. 192, 76 P. 310; Early Times Distillery Co. v. Zeiger, 1897-NMSC-009, 9 N.M. 45, 49 P. 1118; Early Times Distillery Co. v. Zeiger, 1897-NMSC-008, 9 N.M. 31, 49 P. 723.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assignment for Benefit of Creditors §§ 7, 23, 33, 81, 97, 122, 125, 130, 138.
6A C.J.S. Assignments for Benefit of Creditors §§ 59, 134.