California Title Insurance & Trust Co. v. Consolidated Piedmont Cable Co.

Searls, C. In November, 1893, the above-named plaintiff brought an action against the defendant, the Consolidated Piedmont Cable Company, to foreclose a mortgage made by defendant upon its property, consisting of real estate, buildings, franchises, street railway, cars, machinery, etc.

[238]The court, on the application of plaintiff, appointed Ira Bishop receiver of the mortgaged property, to take possession thereof, and to maintain and operate the railway pending the action, and until final decree. Bishop qualified as receiver, took possession of and operated the railway until March 19, 1895.

A decree of foreclosure was entered October 23, 1894, under which, on the nineteenth day of March, 1895, Ira Bishop, who was appointed by the decree a commissioner so to do, sold the mortgaged property.

The contention here arises over $406.28, which came to the hands of the receiver, as follows, viz., $5.15 found in the safe of the defendant, and by him taken into possession when he went into possession as such receiver, and the further sum of $401.13 collected by him from the Oakland Consolidated Street Railway Company, and due to the defendant herein for repairing some crossings, which sum was so due for services rendered by said defendant from March to November, 1893, and before the appointment of said receiver.

The basis of the claim by John Yule, the respondent herein, to said sum of money is shown by his sworn petition, filed May 10, 1895, to be as follows:

On the nineteenth day of March, 1895, one Albert L. Black brought suit against the defendant and appellant herein to recover the sum of $10,000, etc., and sued out a writ of attachment in due form, which was on the last-mentioned day duly served upon said receiver, whereby the said sum of $406.28, and all other debts and credits and personal property of the defendant therein, and appellant here, in the possession of or under the control of said Ira Bishop, receiver, were duly attached. On the sixth day of May, 1895, Black recovered judgment against the defendant and appellant herein for $11,540.80, no part of which has been paid. Black assigned said judgment to the petitioner, John Yule, on May 7, 1895.

Upon filing this petition the court made an order on Bishop, requiring him to appear and show cause, if any [239]