Cutting v. Bryan

[256]

RICHARDS, J.

The plaintiff on or about January 6, 1927, commenced this action in the superior court in and for the county of Siskiyou, alleging herself to be the wife of one Henry C. Cutting, and alleging that the property, consisting of mining claims, to which the action related, was and for some time prior to said date had been the community property of herself and her said husband. Upon such averments she sought declaratory relief to the extent permitted under section 1060 et seq. of the Code of Civil Procedure decreeing the extent of her community interest in said property. She further sought to have the title to said property quieted against a number of defendants alleged to be asserting adverse claims thereto. Shortly after the commencement of the action Mahlon R. Bryan, one of said defendants, presented and filed in said court a motion to dismiss the action, supported by the affidavit of one Lloyd L. Root, wherein it was set forth that said Root was the duly appointed, qualified and acting receiver in an action which had been commenced several months prior to the institution of the present action in the United States district court for the northern district of California, wherein Mahlon R. Bryan was plaintiff and Henry C. Cutting and a number of other persons and corporations were defendants, and wherein it was sought to have it adjudicated that whatever title said Henry C. Cutting or any of his co-defendants had in the property in question was held in trust, and not otherwise, for the use and benefit of the plaintiff in said action, and that. the title to said property should be conveyed to said plaintiff by said trustee and quieted as against the said Henry C. Cutting and each and all of his co-defendants. The affiant further asserted that the said United States district court had thus acquired and taken sole jurisdiction over said property for the purpose of determining and quieting the title thereto and had proceeded to exercise said jurisdiction to the extent of appointing the affiant as the receiver of said property and of making and entering an interlocutory decree in said action after a trial thereof had therein determining the issues presented therein, which action and the receivership therein was still pending in said court, and that said property and the whole thereof was in the hands of said receiver and was in the custody of and in the course of