34 P. 242 | Cal. | 1893
A receiver was appointed in the case of California Bank v. Los Angeles & Pacific R. R. Co. on September 13, 1889. On October 26, 1891, plaintiff herein filed a petition of intervention in that action, setting forth, among other things, that he had obtained a judgment against defendant herein for the sum of $4,403.30 on October 2, 1891, and that no part thereof had been paid. He prayed that his claim
1. It is doubtless true that one may so conduct himself as to be estopped from repudiating the action of a receiver, although the order by which the receiver was appointed is void. But in this case mutuality, which is one of the essential elements of estoppel, is wanting. The plaintiff herein could not, by simply intervening in the other case, receive any benefit, and no one, certainly, was prejudiced by his action therein. The receiver was not appointed upon his suggestion. If there be any act tending to validate the order appointing the receiver, such act is the act of the court and not of this plaintiff; but, as we shall see, the order was void. The action in which the receiver was appointed was brought against the corporation, the principal bondholders, and the trustee of the property mortgaged to secure payment of the bonds; but the clerk certifies that no summons appears among the files of
2. This is not a direct attack upon the order appointing the receiver,- but, the order being void, it may be disregarded. If the order is absolutely void, it is a nullity, and can be attacked in any proceeding. That it is absolutely void was clearly demonstrated when the matter was before the court, in department, in Smith v. Superior Court, supra.
3. As to the proposition that the order appointing the receiver is res adjudicata, it is sufficient to say, we think, that a court cannot, by an order denying a motion to set aside a void order, give the latter any vitality. If the order is void, it is void—a mere nullity—and may be treated as nothing. The decision of this court in the certiorari proceeding did not affirm the order of the court below. It declared that order void. It is true the proceedings were dismissed, but laches is the ground upon which the decision went; and the question whether the conduct of the plaintiff, as intervener, estops him from denying the validity of the order appointing the receiver, was not determined.
The order appealed from is reversed.
We concur: De Haven, J.; Harrison, J.; McFarland, J.