Smith v. Superior Court of Los Angeles County

De Haven, J. It appears from the return to the writ of certiorari issued herein that the superior court of Los Angeles, on September 30, 1889, made an order appointing one Silver receiver for the Los Angeles and Pacific Railway Company. The order was made in an action then pending in that court, wherein the California Bank, a corporation, was plaintiff, and the Los Angeles and Pacific Railway Company and others were defendants. The petitioner here claims that the order appointing the receiver was in excess of the jurisdiction of the superior court, and the object of this proceeding is to procure the judgment of this court annulling such order.

It is stated in the complaint in the action in which the receiver was appointed that the" plaintiff therein brings the action in behalf of itself and all other unsatisfied creditors of the Los.Angeles and Pacific Railway Company who shall come in and contribute to the expenses of the action. The complaint then proceeds to state a cause of action in favor of the plaintiff therein, and against the defendant railroad company, upon two unsecured promissory notes, and further alleges that the defendant railroad corporation is indebted to various persons in sums amounting in all to two hundred and twenty-five thousand dollars; that this indebiedness is long past due, and that the numerous holders thereof are “pressing for payment of such indebtedness, and threatening to and will commence suits, attachments, and other proceedings ” against said corporation; that the road of the defendant corporation is completed, but that the rolling stock is not owned, but only leased, by said defendant; that there is a mortgage upon record which purports to secure a lien of two hundred and forty [350]thousand dollars upon the property of said railway company, “and all the rolling stock and motor power of the said company being so leased, as aforesaid, the said defendant corporation has no property of any kind or character out of and from which said plaintiff’s claim could be met, and a judgment at law and execution would not avail this plaintiff, nor any of the other unsecured creditors; that the said defendant railway company is wholly insolvent and unable to pay its debts and liabilities, and there is great danger that, by reason of attachments and other legal proceedings, the property of the said company will be -wasted in costs and expenses.” There are other averments, not necessary to be here set out, which tended to show that the plaintiff in that action was entitled to an injunction against one Wicks and his wife, who were made defendants in the action. The prayer of the complaint is for an injunction against defendant Wicks and his wife, and “ that the court appoint a receiver to take possession of all the property, rights, effects, rents, tolls, issues, and incomes of the said defendant railway corporation, .... and retain the same under the direction of this honorable court; that the court issue an order restraining and enjoining the said defendant railway company .... from claiming any interest in said property, or interfering in the management thereof, except under the orders of this court; that the court ascertain the amount of all the indebtedness of the said railway company, and to whom owing, and adjust and settle the amounts due each,” and for general relief.