241 P. 397 | Cal. | 1925
Plaintiff, as trustee in bankruptcy of the Goewey Investment Company, a corporation, brought an action to recover certain sums of money, together with interest, from the defendant Exnicious, as receiver of the investment company, and the Aetna Casualty and Surety Company, as surety on the receiver's bond. The allegations of the complaint, in substance, are that in an action brought by a stockholder against the Goewey Investment Company the superior court purported to make its order appointing Exnicious as receiver of the company, but that the court had no jurisdiction in the action, "and that said order was and is in excess of the jurisdiction of said court and utterly void and of no effect." The Aetna Casualty and Surety Company executed a receiver's bond for Exnicious in the usual form in the sum of $25,000. Thereupon, Exnicious, assuming to act as receiver under the order of the court, seized the assets and business of the investment company, and retained possession thereof until he turned part of the property over to the plaintiff, who had in the meantime been appointed trustee in bankruptcy upon an adjudication that the investment company was bankrupt. While in possession of the property of the investment company, Exnicious received certain sums of money which he has refused and neglected to turn over to plaintiff. During the same period, he operated *445 the business of the company at a net loss, and depleted its capital assets to the extent of $7,758.78. The prayer of the complaint is that plaintiff have judgment against Exnicious and his surety for the last-mentioned sum, with interest and costs of suit, and for such other and further relief as may be meet and equitable in the premises.
A demurrer to the complaint interposed by the defendant Exnicious was overruled, and he was given time to answer. The demurrer of the defendant Aetna Casualty and Surety Company was sustained. The plaintiff failing to amend, his default and judgment in favor of the defendant Surety Company and against him were entered. Thereupon plaintiff appealed.
The real question in the case is that presented by the demurrer of the respondent Surety Company in the court below, and urged by it on appeal, that the complaint does not state a cause of action against it because of the specific allegation that the superior court had no jurisdiction in the action to make the order appointing the receiver, and that the order was and is in excess of the jurisdiction of the court, and utterly void and of no effect. Its contention is that as the court had no jurisdiction to appoint the receiver, or to require the bond, the order was invalid, there was no consideration for the execution of the bond, and the surety cannot be held upon it. It cannot be successfully denied, of course, that, if the superior court had no jurisdiction to appoint a receiver, the appointment was in excess of its jurisdiction, and void. (Sullivan v. Gage,
The condition and obligation of the bond in the instant case is that "whereas, an order was made on the 26th day of June, 1919, by the Superior Court of the City and County of San Francisco, State of California, appointing the above named principal receiver in the above-entitled cause, and requiring that a bond be executed by said receiver in the sum above named; Now, therefore, if the said John Exnicious, as *447
such receiver, shall faithfully perform the duties of his office, according to law and the orders of said court, then this obligation to be void, otherwise to remain in full force and effect." The bond is squarely predicated upon and is given in compliance with an order which the court had no jurisdiction to make. In Shaughnessy v. American Surety Co.,
The appellant has cited a number of cases, for the most part from other jurisdictions, but they do not overcome the weight of authority supporting the rule which prevails in this state.Baker v. Bartol,
The conclusion we have reached on the main issue presented by the appeal renders it unnecessary to consider the *448 other points relied upon by respondents to further support the action of the court below.
The judgment is affirmed.
Lawlor, J., Richards, J., Shenk, J., Seawell, J., Lennon, J., and Myers, C.J., concurred.