Hanno v. Superior Court

WOOD, J.

—An action was commenced in the Superior Court of Santa Barbara County on February 7, 1938, by the petitioners herein against Santa Ynez Mercury Corp., Ltd., and William Peters and Hans Peters in which it was alleged that the plaintiffs, petitioners herein, and the individual defendants therein named were the only directors of the corporation defendant. It was further alleged that dissension had arisen between the directors and it was sought to have an accounting of the transactions of the various parties, to have the property of the corporation, a mine, sold and the proceeds divided between the parties according to their respective

[640]

interests. Upon the

ex parte

application of the plaintiffs in said action one James MeCloskey was appointed receiver of and for the property of the corporation defendant. The receiver qualified and took charge of the property of the corporation. An answer was filed by the defendants in said action on July 30, 1938, in which the essential allegations of the complaint were denied and the defendants asked that the order of the superior court appointing the receiver be vacated and set aside, that the receiver be dismissed and that the costs and expenses of the receivership and damages occasioned thereby be assessed and taxed against the plaintiffs.

It is alleged in the present petition that thereafter the receiver for the corporation defendant filed a report and account and petition for allowance of fees and for instructions and that the court made an order setting the matter for hearing for October 28, 1938; that on the last-mentioned date petitioners objected to the hearing by the court and in open court delivered to the county clerk a written request for dismissal of the action; that the court thereupon instructed the clerk not to file the dismissal. Petitioners further allege that the matter was then set for hearing for November 30, 1938, and that unless restrained by this court the superior court “threatens to, and intends to, and will entertain, pass upon, hear, try and decide motions and proceedings based upon the allegations and prayer of the complaint of plaintiffs herein, now pending in said Superior Court, and will hear and determine further petitions filed by the receiver, and will hear and determine the said cause on the 30th of November, 1938, when said matter is set for trial”. The respondent court has filed a return to the alternative writ heretofore issued in which it is stated that “unless prohibited by the above entitled Court in the within proceedings, the said Superior Court of the State of California, in and for the County of Santa Barbara, will proceed to settle the accounts of the said receiver, direct the disposition of the assets in the hands of said receiver, and provide for the payment of the receivership costs and expenses”.