Blanchard v. Superior Court

THE COURT.

The question involved herein is whether the superior court should be directed to permit petitioner to amend her complaint in a certain action theretofore commenced by her, by including in such action as a party defendant the name of the liquidator of a corporation which

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was one of the original defendants in the action thus commenced by the plaintiff.

It appears that the alleged cause of action was brought against nine separate defendants therein named, including a corporation which at that time was in process of liquidation. After the action had been commenced, the plaintiff presented to the liquidator of the corporation a claim against it which was identical with the cause of action embraced within the action in which the corporation theretofore had been made a party defendant;—which claim was by the liquidator rejected. , Thereupon, by means of a motion presented to the superior court in said action the plaintiff sought leave to make the liquidator a party defendant therein, which motion was by the court denied, assumedly on the ground that the proper relief afforded the plaintiff was by means of a proceeding in the matter of the liquidation of the corporation.

It is evident that, in view of the fact that eight other persons were individual defendants in the action theretofore brought by the plaintiff, if in addition to her said action to recover a judgment against each of said defendants the plaintiff must prosecute a second action to recover against the corporation defendant or its liquidator, then the plaintiff would be obliged to try her cause twice; whereas if the liquidator should be included as a party defendant in such action but one trial thereof would be necessary.

The situation here presented is analogous to one in which a receiver has been appointed. In the case of

De Forrest

v.

Coffey,

154 Cal. 444 [98 Pac. 27], wherein it appeared that a creditor of an insolvent bank had been denied leave to file an independent action against the receiver of the bank, it was held: “When the court cannot afford the same relief in intervention as a claimant would be entitled to in an independent action, . . . the court should grant leave to bring it, and it would be an abuse of discretion not to do so.” And the ruling there made was affirmed in the later case of