Carpenter v. Eureka Casualty Co.

ROTH, J.,

pro tem.

On August 23, 1932, David Thomas Price, a minor, by Thomas C. Price, his guardian

ad litem,

recovered a judgment for damages based on negligence, against Perry A. McDonald and Mrs. Everett Muleonery, from which an appeal was taken and a stay bond posted on behalf of said defendants. Defendant McDonald was, at the time of the accident out of which the foregoing judgment arose, covered by a policy of public liability insurance issued by Eureka Casualty Company (hereinafter called casualty company”). The bonding company which posted the bond on appeal subsequently became insolvent and the bond on appeal became insufficient. The judgment against defendants McDonald and Muleonery thereafter became final, and on October 20, 1934, an execution having been issued thereon, was returned wholly unsatisfied. In the meantime, the casualty company, on May 13, 1932, had been placed in the hands of the Insurance Commissioner of the State of California, as liquidator, who is respondent herein, and said casualty company was restrained from doing any further

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business. The liquidator caused a notice to creditors to be published, as prescribed by law, on the 16th, 23d and 30th da'ys of May, 1932, and on the 6tli day of June, 1932, which notice provided that the time within which claims could be filed against the respondent corporation would expire on August 21, 1933. No other notice of any kind was given to creditors, and appellant received no notice and had no knowledge of the liquidation of the casualty company until shortly before December 12, 1934, on which date he filed his verified claim in the sum of $2,104.22 with the liquidator. This claim was subsequently rejected on December 14, 1934, by the liquidator, on behalf of the respondent casualty company, upon the sole ground that it was not filed within the time provided by law. Appellant thereafter, by his guardian

ad litem,

on January 23, 1935, filed a verified petition in the superior court as an intervener in the liquidation proceedings then pending, setting up the above facts, including the fact of the minority of appellant, which had continued down to the time of the filing of the petition, and the fact that appellant had no actual knowledge or notice of the insolvency and liquidation proceedings involving the casualty company until shortly before the time of filing his verified claim with the liquidator, and asking that said liquidator be required to show cause why his claim should not be allowed and approved and paid out of the assets of the insolvent corporation. Upon the hearing of this petition the superior court made its order refusing appellant the relief prayed for, on the sole ground that petitioner’s claim was barred by operation of law because it was not filed within the time allowed by statute and because no objection was made to the rejection of petitioner’s claim before January 13, 1934.