Fischer v. Superior Court

NORTON, J.,

pro

tem.

This is an application for a writ of prohibition directed to the Superior Court in and for the county of Los Angeles, commanding said court to refrain from further proceedings in an action therein commenced on the ground that the issues involved in such action are referable to arbitration.

The plaintiff in the suit in question entered into an agreement bearing date May 2, 1929, wherein it conveyed to three trustees all its assets for the purpose of converting them into cash and liquidating its indebtedness. The contract provided that when the indebtedness of the debtor and all expenses of administration of the trust had been paid in full, the trustees were to pay any balance remaining to the debtor. It further provided that the trust should terminate three months from the date of the execution of the contract unless the term thereof was extended by consent in writing of two of the principal creditors, who were parties to the agreement, or unless the trustees decided to terminate the trust prior to such time. It contained the further provision that “in ease any dispute arise between the trustees and any of the creditors or debtor as to the amount or validity of any debt or claim, or as to any other matter under or concerning this agreement, then every such dispute shall be referred to the arbitration of three persons. ’ ’

The debtor, Abrasive Engineering Corporation of California, commenced an action in the above Superior Court in which it seeks an accounting of the administration of the trust and of the properties conveyed by or received from the trustees. In its complaint this plaintiff alleges that all of its assets, together with its goodwill, have been conveyed by the trustees; that the trust terminated on the second day of August, 1929, pursuant to the provisions of the contract to that effect; that the trustees are not pursuing or carrying out the provisions of the contract in connection with the liquidation of the affairs of plaintiff and that prior to the commencement of the action and on or about the twelfth

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day of September, 1929, plaintiff in writing demanded of the trustees that they render an account of the administration of the trust and that the trustees and each of them have failed, neglected and refused to render any account of any character whatever of their administration of the trust. An application by two of the defendant trustees to stay the action until arbitration was had was denied by the Superior Court.