Bogue v. Century Indemnity Co.

THE COURT.

Two appeals are presented in this action: one from an order of the trial court denominated “Preliminary Restraining Order”, which appeal is numbered in this court, Civ. No. 7796; and the other from a judgment afterwards entered, which is numbered in this court, Civ. No. 7957. Believing that the questions involved in these appeals might have become moot by reason of the subsequent entry of a judgment which has become final in the Superior Court in and for the City and County of San Francisco, in an action in which appellant herein, Century Indemnity Company, was plaintiff, and the respondent, George Bogue, and others were defendants, which action was numbered in the records of said superior court No. 22'0,709, this court on its own motion made and issued an order to show cause why the appeals should not be dismissed. On the return day this court directed the county clerk of the city and county of San Francisco to transmit the judgment-roll in the latter action to this court and that judgment-roll is now before us. For convenience of reference we shall hereafter refer to the action in which these appeals were taken as the Santa

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Clara County action and the other action as the San Francisco action.

The Santa Clara County action was commenced by respondent, George Bogue, against appellant, Century Indemnity Company, to recover upon a stock broker’s bond furnished by appellant as surety for W. H. Young & Bros., Inc., a corporation. The San Francisco action was commenced by Century Indemnity Company, appellant herein, against respondent, George Bogue, and other claimants under said bond to determine and marshal their respective claims, limit the total recovery of all such claimants to the sum of $5,000, the penal sum of the bond, and determine the portion of such sum of $5;000 to which each claimant was entitled.

An inspection of the judgment-roll in the San Francisco action shows that judgment was entered therein fixing and determining the amount of the claim of each of the defendants, including the respondent, Bogue, the amount of whose claim was therein determined to be $2,087.51; determining the total liability of appellant, Century Indemnity Company, to all claimants under the bond to be $5,000, and decreeing that after the payment of costs out of this amount the several defendants were entitled to the payment of the residue of such sum of $5,000 according to certain percentages therein fixed, the percentage so fixed for Bogue being 11.698 per cent. The judgment further decrees that upon payment to the several defendants as therein ordered the plaintiff shall be released and discharged from all liability to the defendants and each of them arising upon said- bond, and said bond shall thereupon be exonerated and the plaintiff released and discharged from all liability thereon; and enjoins and restrains the defendants or anyone acting under or through them from asserting or claiming against plaintiff upon or under said bond any other or greater sum or amount than the proportions or percentages therein decreed, and from levying execution upon any judgment that may have been obtained for any greater proportions or percentages, and from commencing, maintaining or prosecuting any action or actions beyond such amount upon any bond or undertaking given to stay or prevent execution on any such judgment. This judgment has become final as to respondent Bogue, ap