In Re Union Bldg. & Loan Assn.

California Court of Appeal Aug 28, 1936 No. Civ. No. 9888Published

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Holding. The superior court lacks jurisdiction to compel a building and loan commissioner to execute a sale of property previously authorized by the court, as such court orders are permissive authorizations rather than mandatory directives. Consequently, a third party cannot intervene in liquidation proceedings to enforce a sale, but must instead pursue an ordinary action at law for any alleged breach of contract.

Issues

Whether the superior court has jurisdiction to compel the building and loan commissioner to perform a sale of property previously authorized by the court.
Whether an order authorizing the commissioner to sell property creates enforceable rights for a proposed purchaser.
Whether the superior court has the power to modify a final order by imposing a mandatory deadline for the commissioner to execute a sale.

Disposition. annulled

Quotations verified verbatim against the opinion

“the court is not given the power to 'direct' the making of compromises but only to 'authorize' them.”

“Such an order conferred no rights upon persons with whom the commissioner proposed to deal.”

“the order which the court made and which forms the subject of this appeal was beyond its jurisdiction.”

16 Cal.App.2d 301 (1936) In the Matter of UNION BUILDING AND LOAN ASSOCIATION OF SAN FRANCISCO, CALIFORNIA (a Building and Loan Association). L. C. DRAPEAU, as Building and Loan Commissioner, etc., Appellant,

C. C. RUNDLE, Respondent.

Civ. No. 9888. California Court of Appeals. First Appellate District, Division One.

August 28, 1936. McKee, Tasheira & Wahrhaftig and Walter Carrington for Appellant.

George C. Hadley for Respondent.

The Court.

On and prior to October 18, 1934, L. C. Drapeau, State Building and Loan Commissioner, was engaged in liquidating the Union Building and Loan Association of San Francisco, having theretofore filed in the Superior Court of the City and County of San Francisco a declaration of his determination so to do under the provisions [303] of section 13.16 of the Building and Loan Association Act. (Stats. 1931, p. 483.) Said declaration was entitled "In the Matter of Union Building and Loan Association of San Francisco, California, a building and loan association," and numbered 239,806. On said day, upon prior petition therefor in accordance with the provisions of said section, an order was made by said court by which the commissioner was "authorized to sell to Carrol Newby for $6,750 par value in approved claims against said association, based upon investment certificates issued by said association, and to execute to said Carrol Newby a grant deed" to certain described real property. The order further provided "that the surrender value of said approved claims held by said Carrol Newby and offered as a consideration for the sale of said property is hereby fixed and determined to be the sum of $3,375.00."

On January 25, 1935, C. C. Rundle filed in said superior court under the same title and number under which said order was made an affidavit, in which he alleged that by said order of October 18, 1934, the superior court had "decreed" that L. C. Drapeau, as Building and Loan Commissioner and liquidator of the Union Building and Loan Association of San Francisco, "should sell to Carrol Newby" the real property mentioned; that Carrol Newby was the agent of himself and his wife, Daisy M. Rundle, in the matter of said purchase; that he is now ready, able and willing to tender $6,750 par value in approved claims against said Union Building and Loan Association, and that L. C. Drapeau, as Building and Loan Commissioner, has failed and refused to "fulfill" said order. Thereupon an order to show cause was issued, which recited that the commissioner had failed and refused to comply with the order in question, and commanded him to show cause why he should not be directed to comply therewith. The commissioner duly appeared and showed cause, with the result that on February 18, 1935, the superior court made and entered an order to the effect that the commissioner "be and he is hereby directed to comply with said order of court heretofore made on the 18th day of October, 1934, in anywise affecting or pertaining to C. C. Rundle and Daisy M. Rundle, his wife, and/or Carrol Newby"; and that he "shall comply with this order on or before March 1, 1935".

In Re Union Bldg. & Loan Assn.

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C. C. RUNDLE, Respondent.

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