Ephraim v. Pacific Bank

HARRISON, J.

In an action pending in the superior court of Madera county, wherein the defendants herein were plain

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tiffs and the Madera Fruit and Land Company et al. were defendants, the plaintiff herein, at the instance of the plaintiffs in that action, was appointed as receiver of certain lands and premises described in the complaint in said action, on February 1, 1894, and thereupon entered upon his duties as such receiver. Prior to the commencement of this action the California Savings and Loan Society had commenced an action to foreclose a mortgage held by it upon the property, and on November 26, 1894, obtained a judgment of foreclosure and sale, under which the property was sold to it January 9, 1895, and there having been no redemption, the property was conveyed to it July 17, 1895, and the possession thereof turned over to it by the receiver. In the discharge of his duties as such receiver the plaintiff expended certain moneys in caring for the property, and afterward presented his account to the court for settlement, and on October 4, 1897, the court made an order settling and allowing the same. Upon an appeal taken from this order it was affirmed in this court May 27, 1899. On March 6, 1895, after the judgment and sale in the foreclosure suit, the plaintiffs in the action in which the plaintiff herein was appointed receiver dismissed the suit.

The Pacific Bank, one of the defendants herein, was by an order of its board of directors declared insolvent June 22, 1892, and on November 3, 1893, in an action brought in the superior court for San Francisco for that purpose, was by said court declared and adjudged to be insolvent, and that its affairs and business should be closed and liquidated. The defendants herein other than the Pacific Bank are the trustees and directors of said corporation, and as such have the custody and control of its funds and assets. August 6, 1898, they had in their possession and under their control enough of said funds and assets to pay the claim of the plaintiff, and on that day were notified by him of his said claim, and that it was a preferred claim, and that they should retain a sufficient amount to pay the same.

To the complaint setting forth the foregoing facts the defendants demurred, and, their demurrer having been sustained, a judgment was entered against the plaintiff, from which he has appealed.