Taylor v. Exnicious

WASTE, J.

Plaintiff, as trustee in bankruptcy of the Goewey Investment Company, a corporation, brought an action to recover certain sums of money, together with interest, from the defendant Exnieious, as receiver of the investment company, and the Aetna Casualty and Surety Company, as surety on the receiver’s bond. The allegations of the complaint, in substance, are that in an action brought by a stockholder against the Goewey Investment Company the superior court purported to make its order appointing Exnieious as receiver of the company, but that the court had no jurisdiction in the action, “and that said order was and is in excess of the jurisdiction of said court and utterly void and of no effect.” The Aetna Casualty and Surety Company executed a receiver’s bond for Exnicious in the usual form in the sum of $25,000. Thereupon, Exnicious, assuming to act as receiver under the order of the court, seized the assets and business of the investment company, and retained possession thereof until he turned part of the property over to the plaintiff, who had in the meantime been appointed trustee in bankruptcy upon an adjudication that the investment company was bankrupt. While in possession of the property of the investment company, Exnicious received certain sums of money which he has refused and neglected to turn over to plaintiff. During the same period, he oper

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ated the business of the company at a net loss, and depleted its capital assets to the extent of $7,758.78'. The prayer of the complaint is that plaintiff have judgment against Exnicious and his surety for the last-mentioned sum, with interest and costs of suit, and for such other and further relief as may be meet and equitable in the premises.

A demurrer to the complaint interposed by the defendant Exnicious was overruled, and he was given time to answer. The demurrer of the defendant Aetna Casualty and Surety Company was sustained. The plaintiff failing to amend, his default and judgment in favor of the defendant Surety Company and against him were entered. Thereupon plaintiff appealed.

The real question in the case is that presented by the demurrer of the respondent Surety Company in the court below, and urged by it on appeal, that the complaint does not state a cause of action against it because of the specific allegation that the superior court had no jurisdiction in the action to make the order appointing the receiver, and that the order was and is in excess of the jurisdiction of the court, and utterly void and of no effect. Its contention is that as the court had no jurisdiction to appoint the receiver, or to require the bond, the order was invalid, there was no consideration for the execution of the bond, and the surety cannot be held upon it. It cannot be successfully denied, of course, that, if the superior court had no jurisdiction to appoint a receiver, the appointment was in excess of its jurisdiction, and void.