90 Cal. 364 | Cal. | 1891
This is an application to this court for a writ of prohibition to the superior court of the city and county of San Francisco, Department 3, John F. Finn, judge, commanding and directing said court and judge, and assignee and receiver appointed by said court, to desist from further proceeding in the matter hereinafter stated. It is alleged in the petition that on December 1, 1890, W. H. Eastland and John Fowler were copartners, residents of this state, and doing business in the city of San Francisco under the name of Eastland, Fowler & Co.; and as such partners were indebted to the petitioners in a large sum, and in order to secure the same, that firm made a transfer and conveyance of certain of its assets to the petitioners, and possession thereof was given to them. On the 9th of December, 1890, the said W. H. Eastland and John
It is claimed by petitioners that the superior court never acquired jurisdiction over the assets of the firm of Eastland, Fowler & Co. in the insolvency proceedings, because the said petition of W. H. Eastland and John Fowler, in insolvency, was not filed by or on behalf of the firm of Eastland, Fowler & Co., and contains no averment of the existence, at any time, of such a firm. Upon this assumption it is argued that the assignee appointed in that proceeding acquired no title to the property of said firm. We do not find it necessary to determine whether this contention of petitioners in regard to the effect and scope of the insolvency proceedings is correct or not, as in any view we are clear that the writ applied for must be denied. The respondent court has jurisdiction of the action of said assignee against the petitioners here, and of the parties thereto, and had authority to appoint a receiver to take possession of the property in controversy, and its jurisdiction is in no wise affected by or dependent upon the proceedings in insolvency. If, as claimed by the petitioners, the assignee acquired no title to the property in controversy, by virtue of these proceedings, they will have ample opportunity to present and have that question determined in the action, to which they are parties, now pending in the superior court. The order appointing the assignee in the insolvency proceedings has already been made, and it is not the office of a writ of prohibitian to prevent him from prosecuting such suits as he may deem proper for the recovery of property which he claims is vested in him as such assignee.
Writ denied.
McFarland, J., Harrison, J., Sbtarpstein, J., Garó utte, J., and Paterson, J., concurred.