97 Cal. 348 | Cal. | 1893
It appears from the return to the writ of certiorari issued herein that the superior court of Los Angeles, on September 30, 1889, made an order appointing one Silver receiver for the Los Angeles and Pacific Railway Company. The order was made in an action then pending in that court, wherein the California Bank, a corporation, was plaintiff, and the Los Angeles and Pacific Railway Company and others were defendants. The petitioner here claims that the order appointing the receiver was in excess of the jurisdiction of the superior court, and the object of this proceeding is to procure the judgment of this court annulling such order.
It is stated in the complaint in the action in which the receiver was appointed that the" plaintiff therein brings the action in behalf of itself and all other unsatisfied creditors of the Los.Angeles and Pacific Railway Company who shall come in and contribute to the expenses of the action. The complaint then proceeds to state a cause of action in favor of the plaintiff therein, and against the defendant railroad company, upon two unsecured promissory notes, and further alleges that the defendant railroad corporation is indebted to various persons in sums amounting in all to two hundred and twenty-five thousand dollars; that this indebiedness is long past due, and that the numerous holders thereof are “pressing for payment of such indebtedness, and threatening to and will commence suits, attachments, and other proceedings ” against said corporation; that the road of the defendant corporation is completed, but that the rolling stock is not owned, but only leased, by said defendant; that there is a mortgage upon record which purports to secure a lien of two hundred and forty
The order for the appointment of the receiver was made with the consent of the defendant, the Los Angeles and Pacific Railway Company, and directed said receiver “to continue the operation of said roads in accordance with the usual modes and methods of operating railroads.”
1. We are unable to distinguish the action in which the order under review was made from that of the French Bank case, 53 Cal. 495. It was there held that the appointment of a receiver in such an action was
2. It appears from the record before us that more than two years after the date of the order appointing the receiver, the petitioner, on his own application, was permitted to intervene in the action in which that order was made, and to join as a plaintiff therein. In his petition for intervention, he demanded a judgment against the Los Angeles and Pacific Railway Company for an alleged indebtedness due him from that corporation, and that its land be sold by the receiver already appointed, and the proceeds thereof applied to the payment of the debts of that defendant. This action upon the part of the petitioner was, in effect, a consent to the order now sought to be annulled; but whether such consent would be of itself sufficient to defeat the present proceeding need not be determined, as we are of opinion that the
The petition herein was not filed until July 22, 1892, nearly three years after the making of the order sought to be annulled, and no circumstances are shown which in any manner tend to excuse the long delay in making this application.
In the case of Reynolds v. Superior Court, 64 Cal. 372, it was held that delay in commencing proceedings of this character for a period exceeding one year, unless excused by circumstances, was sufficient to defeat the application for such relief.
In that case the court said: “By means of certiorari the petitioner seeks to call in question the validity., of a judgment and an order made and entered considerably more than one year before the presentation of his petition. In Keys v. Marin County, 42 Cal. 256, it was held that unless circumstances of an extraordinary character be shown to have intervened, the remedy through a writ of certiorari should be held to be barred by the lapse of the same length of time that bars an appeal from a final judgment.” We regard the case just cited as conclusive of this, and upon its authority the writ must be discharged and the proceeding dismissed.
Proceeding dismissed.
McFarland, J., and Harrison, J., concurred.
Hearing in Bank denied.