Aetna Casualty & Surety Co. v. Exnicios

THE COURT.

Appellant, in an action filed in the Superior Court in and for the City and County of San Francisco, numbered 94,314, and entitled “Charles H. Goewey, Plaintiff,

v.

Herbert Goewey and Goewey Investment Co., a Corporation, Defendants,” was duly appointed receiver of the property of the corporation. Following the order he filed a qualifying bond which was furnished by the respondent surety company. He entered upon his duties and during the period of his active receivership was paid by order of the court certain sums as fees for his services and those of his attorney. Subsequently the investment company was adjudged a bankrupt and its property was surrendered by the receiver to the trustee in bankruptcy. Thereafter the trustee brought suit in the above Superior Court against appellant and respondent Surety Company to recover the amount received as fees by appellant and his attorney and for a further sum alleged to have been lost while the business of the investment company was being conducted by the receiver. The action last mentioned was numbered 129,253 and entitled “Charles W. Taylor, Trustee in Bankruptcy for the Goewey Investment Co., a Corporation, a Bankrupt, Plaintiff,

v.

John Exnicios and Aetna Casualty and Surety Company (a Corporation), Defendants.” The complaint alleged that the Superior Court was without jurisdiction to appoint appellant receiver of the investment company and that the order was consequently void. A demurrer filed by appellant was overruled, and after a trial upon the merits a judgment, which has become final, was rendered in appellant’s favor. Respondent Surety Company also demurred to the complaint, and its demurrer was sustained. Following this ruling judgment was entered therein in its favor and was affirmed on appeal

(Taylor

v.

Exnicious,

197 Cal. 443 [241 Pac. 397]). The trustee in the action last mentioned sought to hold the Surety Company liable upon the bond for the portions of the estate of the bankrupt alleged to have been unlawfully received and lost by appellant, it being his contention that notwithstanding the allegation that the order of appointment was void, the bond having been given to enable appellant to exercise the func

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