Crittenden v. Superior Court of San Luis Obispo Cty. (1913) · DecisionDepot

Crittenden v. Superior Court of San Luis Obispo Cty.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Supreme Court Oct 18, 1913 No. S.F. No. 6634.Published

Before: Angellotti

Synopsis

APPLICATION for a Writ of Prohibition directed to the Superior Court of San Luis Obispo County and to B. P. Unangst, as judge thereof.

The facts are stated in the opinion of the court.

[342]

ANGELLOTTI, J.

This is an application for a peremptory writ of prohibition to restrain defendants from proceeding further with a certain action pending in the superior court of San Luis Obispo County entitled “Neil Stewart, as Receiver of the Bank of San Luis Obispo, a corporation, Plaintiff,

James L. Crittenden, Defendant,” being action No. 4541 in said court, save and except to dismiss the same.

The action referred to is one instituted in said court on November 7, 1906, by Herman Silver et al., claiming to act as the bank commissioners of the state of California, against James L. Crittenden, plaintiff here, and others, to obtain a judgment against said Crittenden for the use and benefit of the Bank of San Luis Obispo, for the amount due on a promissory note given by Crittenden to said bank, for $22,268.13 and interest, executed on and dated November 8, 1901, and maturing one year after date. The Bank of San Luis Obispo was named by the bank commissioners as a party plaintiff in the title of the action. At the time of the commencement of this action a proceeding was pending in said court, instituted therein on February 1, 1906, and numbered therein 4463, under section 10 of the Banking Act, approved March 24, 1903 (Stats. 1903, p. 365), being one brought by the people of the state by the attorney-general on the complaint of the bank commissioners, to obtain a decree ordering said bank into involuntary liquidation, enjoining it from doing any further business and appointing a receiver for purposes of liquidation. On December 12,1906, judgment was given in said action 4463 by the said court, granting the relief sought, and appointing said Stewart as the receiver. Notice of motion for new trial was given by the defendants in such action, and thereafter, on or about December 15, 1906, defendants appealed to this court from the judgment therein, giving, it appears to be admitted, a bond in all respects sufficient to stay execution of all proceedings on the judgment, pending the appeal therefrom. On August 27, 1908, the judgment was affirmed by this court, such judgment becoming final September 26, 1908. (See

People etc.

Bank of San Luis Obispo,

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The other points made in support of the application in the proceeding at bar clearly do not go to the question of jurisdiction. In fact, it may well be doubted whether the points already discussed go to that question. We have here an action on behalf of the Bank of San Luis Obispo against petitioner here on a promissory note alleged to have been given by him to such bank. Of course, the superior court of San Luis Obispo County has jurisdiction of the subject matter of such an action. Such court acquired jurisdiction of the person of the defendant therein by reason of service of summons on him and his subsequent appearance. It is claimed that the bank commissioners had no authority under the provisions of the act of 1903 to institute and maintain such action on behalf of the bank. That is a matter in no way affecting the jurisdiction of the court, but presents a question to be determined in the action itself. Legal incapacity of the plaintiff in an action to sue is an objection to be presented by demurrer if the fact appears on the face of the complaint, and by answer, if it does not so appear (Code Civ. Proc., sees. 430 and 433), and if such an objection is not taken by either demurrer or answer it must be deemed to have been waived. (Code Civ. Proc., sec. 434.) It does not go to the jurisdiction of the court. Of course, prohibition lies only to restrain such proceedings as are in excess of jurisdiction, and we do not deem it proper to undertake in this proceeding to determine whether or not the bank commissioners had the authority to institute this action on behalf of the bank, if we have no right to prohibit further proceedings in the action in the event that we conclude that they had no such authority. If defendant properly makes his objection in this behalf in the court below, the action of that court may be reviewed on appeal. Of course there is no force whatever in the claim that this action on behalf of the Bank of San Luis Obispo abated by reason of the repeal of the Banking Act of 1903. The utmost that can be claimed in this regard is that the bank commissioners were thereby disabled from further maintaining the action, which was probably already the situation by

Synopsis

ANGELLOTTI, J.

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