Smith v. Superior Court of Los Angeles County

Citations

• 97 Cal. 348
• 32 P. 322
• 1893 Cal. LEXIS 545

Syllabus

<p>Action at Law — Complaint by Unsecured Creditors of Insolvent Corporation—Void Appointment of Receiver — Certiorari.—An action against a railroad company upon unsecured promissory notes of the company is essentially an action at law, and is not changed into a suit in equity, in which a receiver may be appointed, merely because the complaint contains allegations to the effect that the company is insolvent and that other creditors are threatening to sue it, and that it has no property out of which the plaintiff will be able to satisfy any judgment it may obtain, and that the action is brought in behalf of the plaintiff and all other creditors of the company who are willing to come in as plaintiffs. The appointment of a receiver in such a case is unauthorized and void, and will be annulled on certiorari, if the proceedings are commenced in due time.</p> <p>Id. — Consent to Appointment of Receiver.—The consent of the railroad company to the appointment of the receiver does not affect the right of a creditor aggrieved thereby to have the order appointing such receiver annulled on certiorari.</p> <p>Id. — Delay in Applying for Certiorari — Limitation of Time. — Delay in bringing a writ of certiorari to annul a judgment or order for a period exceeding one year is sufficient to defeat the application, unless circumstances are shown which tend to excuse the delay.</p>