Smith v. Los Angeles & Pacific Railroad

PATERSON, J. A receiver was appointed in the case of California Bank v. Los Angeles & Pacific R. R. Co. on September 13, 1889. On October 26, 1891, plaintiff herein filed a petition of intervention in that action, setting forth, among other things, that he had obtained a judgment against defendant herein for the sum of $4,403.30 on October 2, 1891, and that no part thereof had been paid. He prayed that his claim [238]might be allowed against the corporation defendant, and that certain land belonging to the latter be sold and the proceeds of the sale be applied to the payment of the debts of the corporation in such proportion as the court should determine. On July 11, 1892, he applied to the court for an order discharging the receiver, on the ground that said order was void, the court having no jurisdiction to make the same. The application was denied, and thereafter he applied to this court for a writ of certiorari to review the proceedings. A hearing was had, and judgment was entered denying the petition on the ground that the petitioner had lost his right to the relief prayed for by reason of his delay in making the application: Smith v. Superior Court, 97 Cal. 348, 32 Pac. 322. Subsequently, plaintiff applied in this action to the court below for an order directing the sheriff to levy upon sufficient property of the defendant in the hands of the receiver to satisfy his judgment. The motion was denied, and from the order this appeal was taken. Respondent contends that the order should be affirmed for the following reasons: By intervening in the bank case, for the purpose of enforcing his judgment, the plaintiff became a party to that action, and has ratified and consented to the appointment of the receiver, thereby waiving all right to question' the order by which said receiver was appointed; that this is a collateral attack- upon the order appointing the receiver; and that, as between the appellant and the respondent, said order is res adjudicaba.

1. It is doubtless true that one may so conduct himself as to be estopped from repudiating the action of a receiver, although the order by which the receiver was appointed is void. But in this case mutuality, which is one of the essential elements of estoppel, is wanting. The plaintiff herein could not, by simply intervening in the other case, receive any benefit, and no one, certainly, was prejudiced by his action therein. The receiver was not appointed upon his suggestion. If there be any act tending to validate the order appointing the receiver, such act is the act of the court and not of this plaintiff; but, as we shall see, the order was void. The action in which the receiver was appointed was brought against the corporation, the principal bondholders, and the trustee of the property mortgaged to secure payment of the bonds; but the clerk certifies that no summons appears among the files of