Mills v. Superior Court

BARNARD, J. This is an application for a writ of mandate to compel the respondents to make an order granting to the petitioner herein leave to sue the receiver appointed by the respondent court in an action now pending therein, or in the alternative to make an order granting leave to this petitioner to intervene in said action and permitting her to attach the funds in the hands of the receiver.

The petition alleges that on September 4, 1936, one T. J. 0 ’Brien, one of the partners in a firm doing business as Robinson Motors Company, brought an action against his copartners asking for dissolution of the partnership, an accounting and the appointment of a receiver; that on December 23, 1936, judgment was pronounced in that action making the ex parte appointment of the receiver permanent, with power to take possession of the firm property, to wind up the affairs of the partnership and to pay the partnership debts, and ordering an accounting as between the partners; that on January 21, 1937, the petitioner filed in that action a petition for leave to sue the receiver or to intervene, alleging therein that the partnership was indebted to her in the sum of $400 and that she had demanded payment of the same from the receiver, and requesting leave to sue the receiver or leave to intervene and present her claim for payment and for permission to [362]attach funds in the hands of the receiver; that said petition was heard on February 11,1937; and that permission to sue or intervene in the other action was denied.

The answer sets forth a copy of the interlocutory judgment entered in the action in which the receiver was appointed. It also sets forth a copy of the order made by the respondent court after hearing this petitioner’s application for leave to sue the receiver or to intervene in the other action. This order is as follows:

“1. That said petitioner, Mrs. 0. Mills, be, and she is hereby granted leave to present her claim alleged in said petition to the Receiver, Geo. H. Lips, of the Robinson Motors Company heretofore appointed by this court.

“2. That in all other particulars said petition be and it is hereby denied.”

The answer alleges that the claim of this petitioner against said partnership for $400 was presented for allowance and approval by the receiver to the respondent court on March 3, 1937, and that the same was, on that date, allowed and approved by the said court, a copy of the order allowing the claim being attached to the answer. The answer further alleges that since September 4, 1936, the copartnership and business conducted under the name of Robinson Motors Company has been and now is insolvent, that the receiver referred to had refused and now refuses to pay the claim of this petitioner for the reason that said copartnership and business has at all times been and now is insolvent, and that the funds in the hands of the receiver are insufficient to pay the claims against said copartnership which have been duly allowed and approved.