Alameda City Land Co. v. Mortimer

STURTEVANT, J.

The plaintiff commenced an action to recover an alleged delinquent assessment on shares of gtock alleged to be owned by the defendant. The defendant

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appeared and answered and a trial was had in the lower court before the court sitting without a jury. The trial court made findings in favor of the plaintiff. From a judgment entered on those findings the defendant has appealed and has brought up the judgment-roll and a bill of exceptions. The bill of exceptions is so brief that it covers only two pages of the transcript and contains little, if anything, material to the points presented by the defendant.

The first point made by the defendant is that under section 349 of the Civil Code the plaintiff had no right to institute actions against some of the delinquent stockholders and at the same time, as to other stockholders, to proceed in the ordinary manner and take the ordinary relief of conducting a sale of the delinquent stock. In making this contention the defendant asserts that section 349 of the Civil Code should be construed as though it were worded as follows: “On the day specified for declaring the stock delinquent or at any time subsequent thereto and before the sale of the delinquent stock, the board of directors may elect to waive further proceedings under this chapter for the collection of (unpaid) delinquent assessments, or any part or portion thereof (remaining unpaid) and may elect to proceed by action to recover the amount (of the unpaid part) of the assessment and the costs and expenses already incurred, or any part or portion thereof (so remaining unpaid).” Words in parentheses are interpolations. We are wholly unable to follow counsel in this contention. To do so would be judicial legislation. We have no such power (23 Cal. Jur. 727). It is earnestly argued that any other construction renders the provisions of the statute unjust. We do not concede that following the statute as written its provisions are unjust. But even though they may be the argument should be addressed to the legislature and not to the courts. The statute has stood on the books since 1872 and this is the first time that it has been claimed that the statute is unjust. A similar statute exists with reference to every taxpayer. (Pol. Code, sec. 3899.) But whether just or unjust, the action was properly brought against the defendant.