Depauli v. Espitallier

SMITH, J.

This is a suit to foreclose a chattel mortgage of date February 27, 1902, for the sum of $6,000, etc. The complaint was filed February 4, 1904, and the defendant made default. The appellant is the holder of a note made to him by the defendant for the sum of $1,134.56 of date December 18, 1899, and having commenced his action January 2, 1904, and having recovered judgment against the defendant for $988.61 February 11, 1904, he filed his complaint in intervention in this case February 14, 1904. The complaint in intervention, besides the above facts, alleges: That in a proceeding in bankruptcy pending in the district court of the United States for the southern district of California, the defendant was adjudged a bankrupt; that no assignee has

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as yet been elected by the creditors, and that none can be or will be appointed until after the time at which judgment may be entered in this case, etc.; that the mortgage in suit was given in the sum of $6,000 to secure an indebtedness not greater than $2,000, and with the design and purpose of hindering, delaying, and defrauding the intervener and other creditors of the defendant; and, finally, that the suit was brought with the consent and connivance and at the request of the defendant with like intent and purpose. To this complaint a demurrer was interposed, and on March 22, 1904, the demurrer was sustained and judgment by default entered against the defendant, from which the intervener appeals.

The question involved is as to the sufficiency of the intervener’s complaint. The objection urged to it is that the intervener, being a mere general creditor, has not such an interest in the property involved as to entitle him to intervene. But the intervener’s ease is something more than that of a general creditor. By the adjudication of the insolvency of the defendant, the property of the insolvent came into the hands of the court for disposition, and thus became a trust fund, in which every creditor of the defendant has a special interest or lien

(Rued

v.

Cooper,

109 Cal. 683, [34 Pac. 98];

Argues