Kato v. Busick

MELVIN, J.

Respondents moved to dismiss a petition for a writ of prohibition upon the grounds that the receiver against whom the writ was asked had been discharged as such receiver; that the harvesting of the crop which petitioners asked to have prevented had been accomplished and the proceeds distributed to the proper parties; that petitioners had consented to the continuation of the receivership; that the matter involved in the receivership proceeding had been fully settled and terminated, and that the whole controversy had become a moot question.

It appears without contradiction that on December 10, 1915, M. Itoo commenced in the superior court of the county of Sacramento an action against M. Vamane, C. Nagasue, and R. Koike. An attachment was issued and the sheriff levied upon a certain growing crop of onions in San Joaquin County. Subsequently, Kato, for himself and as agent for one Wakamoto and Toshi Koike (the last named being the wife of R. Koike), filed a third-party claim. The sheriff thereupon demanded and Itoo, the plaintiff, at once deposited one thousand one hundred dollars for the sheriff’s protection against said third-party claim. The plaintiff subsequently made a motion for the appointment of a receiver to harvest, sell, and account for the crop of onions. The motion was granted; one M. P. Barnes was appointed and qualified as receiver, and the sheriff put him in possession of the crop. At the time the receiver was appointed the sheriff had refused to take the

[120]

responsibility of harvesting the crop, and the third-party claimants had refused to gather the onions while the attachment was in existence.

The third-party claimants, S. Kato, T. Wakamoto, and Toshi Koike (wife of R. Koike), petitioned this court for a writ of prohibition, and an order to show cause why such writ should not issue was made. The matter was argued and is still pending. On August 9, 1916, before the return day fixed by the order to show cause the attorneys for the receiver, the plaintiff, and the third-party claimants respectively entered into a stipulation reciting the facts that Kato claimed forty per cent, and Mrs. Koike and Wakamoto each thirty per cent, of the crop held by the receiver and agreeing that the receiver should harvest, market, and sell the crop as in said order provided and should pay the money received, after subtracting the costs of harvesting, etc., as follows: Forty per cent to Kato, thirty per cent to Wakamoto, and thirty per cent, the amount claimed by Mrs. Koike, to some bank on deposit to abide the order of the superior court in the matter of the receivership. The stipulation contained the following paragraph :