People v. Roath

WHITE, J. This is an action instituted by the People of the State of California upon bonds conditioned for the payment by defendant Roath “of all license taxes, penalties and other obligations of said principal arising out of’’ the State Motor Vehicle Fuel License Tax Act (Stats. 1923, p. 571, as amended). Defendant Roath having incurred liability to the State for delinquent taxes and penalties in the sum of [243]$25,118.76 and having failed to pay such amount, the state controller endeavored to effect collection thereof by seizing the distributing plant and other personal property of Roath with a view to selling the same at public auction as authorized by section 4 of the above mentioned act (Deering’s Gen. Laws, 1937, Act 2964, p. 1407). In connection with the seizure of defendant Roath’s plant and advertising the same for sale the state controller incurred a total expense of $2,262.60. No sale of the seized properties, however, was accomplished for the reason that prior to the sale date thereof Roath filed a petition in bankruptcy, in which proceeding an order was issued requiring the state controller to surrender the property to the trustee in bankruptcy for administration in the federal court.

On or about July 31, 1941, the attorney general, at the request of the state controller, filed suit in the Superior Court of Los Angeles County against Roath and the two defendant surety companies on his bonds.

Paragraph V of the complaint set forth Roath’s indebtedness for taxes and penalties in the sum of $25,118.76, while paragraph VI alleged that the controller in seizing the 'assets of said defendant and in advertising the same for sale pursuant to the provisions of the pertinent act, incurred costs and expenses in the amount of $2,262.60. After alleging that no part of the sums due for taxes and penalties or the amount due for the expenses of seizing and advertising for sale of the assets of defendant Roath, the prayer of the complaint was for judgment against the last named defendant for the full amount allegedly due, and against the defendant surety companies for the amount of their respective bonds, but not exceeding the total amount claimed to be due from defendant Roath.

Defendant surety companies filed demurrers to the complaint which were overruled. However, their motion to strike from the complaint the allegations contained in the aforesaid paragraph VI thereof was granted by Judge Prank G. Swain, sitting in the law and motion department of the court. Answers were filed by defendant surety companies generally and specifically denying for want of information or belief all of the allegations contained in the complaint save and except the stricken allegations contained in paragraphh VI. A motion subsequently made to reconsider and set aside the