Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

tain an action which the parties or the estate which he represents could not maintain: Coope v. Bowles, 42 Barb. 87; S. C. 18 Abb. Pr. 442; and 28 How. Pr. 10. And he must show a cause of action existing in those parties. Id.

20. Suit against.-A suit cannot be brought against a receiver when the judgment would disturb the receiver's possession of the property; nor can a creditor bring an action against him to litigate his claim. All such questions may be determined by the court by an intervention in the pending litigation. Spinning v. Ohio Life Ins. and Trust Co., 2 Dis, 336.

21. Sufficient Averment.-Alleging that plaintiff is receiver of, etc., appointed by the Supreme Court by an order made on a specified day, on condition of filing security, and that such security was given accordingly, states enough to enable the defendant to take issue upon the legality of the plaintiff's appointment: Stewart v. Beebe, 28 Barb. 34; compare Crowell v. Church, 7 Abb. Pr. 205, note.

22. Transfer to Receiver.—The transfer to a receiver by order of court of the effects of an insolvent in the suit of a judgment creditor, is not an assignment absolutely void under the insolvent act of 1852, according to any decision of the Supreme Court, but only void against the claim of creditors: Naglee v. Lyman, 14 Cal. 450. Where it appears that the partners, parties to the suit for a dissolution, held a judgment against a third party which was never reduced to the possession nor under the control of the receiver, the appointment of the receiver would not operate as an assignment or transfer of any property not so reduced to possession within a reasonable time: Adams v. Haskell, 6 Cal. 113.

23. Vacating Order of Appointment.-The pendency of a motion for a new trial does not operate as a stay of proceedings, so as to deprive the Court of the power of vacating an order appointing a receiver made before the trial: Copper Hill Min. Co. v. Spencer, 25 Cal. 15; Wilson v. Barney, 5 Hun. 257. The Court which first acquires jurisdiction and appoints a receiver of a fund, has the whole jurisdiction thereof, and is bound to administer it: O'Mahoney v. Belmont, 37 N. Y. 380.

No. 80.

ii. The Same-Appointed in Supplementary Proceedings. [TITLE.]

The plaintiff, as receiver of the property of C. D., complains, and alleges:

I. [State cause of action.]
II. That on the .....

day of...

187., at

......, upon an application made by L. M., a judgment creditor of said C. D., in proceedings supplementary to execution, and by an order or determination then duly made by the Hon. G. H., Judge of the District Court of the ..... Judicial District of the State of California, the plaintiff was appointed receiver of the property of said

C. D.

III. That thereafter, and before the commencement of this action, he gave his bond required by said order, etc. [as in preceding form.]

[Demand of Judgment.]

24. Fund in Hands of Trustees.-A complaint by a receiver, appointed in supplementary proceedings, alleged that a fund was given by will to the defendants as trustees, in trust, to keep the same invested, and pay the interest to the execution debtor during his life; that the defendants had collected interest since the appointment of the plaintiff as receiver, but refused to pay the same over to the plaintiff. It did not aver that any part of the interest was in the hands of the defendants, as a surplus above what was necessary for the debtor's support: Held, that the complaint did not state facts sufficient to constitute a cause of action: Graff v. Bonnett, 31 N. Y. 9. The interest of the debtor in the income of the fund under such a trust, is only subject to the claims of creditors to the extent of a surplus over and above what is necessary or proper for his maintenance and support. The Court cannot infer that such a surplus exists. It is the duty of the pleader to show by proper averments that such facts exist. Id.

25. Supplementary Proceedings. In proceeding supplementary to execution, the Court may appoint a receiver when it has all the parties before it: Hathaway v. Brady, 26 Cal. 586.

No. 81.

iii. Another Form--Setting out Proceedings at Length. [TITLE.]

The plaintiff, as receiver of the property of C. D., complains, and alleges:

I. That E. F. and G. H., of San Francisco, State of California, survivors of C. D., deceased, in an action brought by them in the District Court of the ........ Judicial District of this State, against J. K., obtained judgment against the defendant in that action, on, etc., for the sum of, etc., which judgment was entered by the Clerk of the County of ..... on the day aforesaid, and the roll filed and judgment docketed in said Clerk's office on that day.

II. That on, etc., an execution therefor was duly issued and delivered to the Sheriff of said County of

commanding him to make said, etc., with interest from, etc., and make return of his doings in the premises; that said Sheriff afterwards, and on, etc., returned said execution to the office of the Clerk of the County of .... with his return thereon indorsed, showing the execution. wholly unsatisfied.

III. That afterwards, and on, etc., the plaintiff in said

........

action caused an affidavit to be made, setting forth the above facts, as to obtaining said judgment, the filing of transcript, the issuing and return of said execution, and that the said judgment remained wholly unsatisfied, and presented the same to Hon. J. D., Judge of the District Court of the ... Judicial District, on the same day, who thereupon, and on, etc., made an order requiring said judgment debtor to appear before L. M., Esq., referee thereby appointed, at the office of the said L. M., in, etc., on, etc., at ... o'clock in the noon, to testify concerning his property; and said N. O., by said order was further forbidden to transfer, or in any manner dispose of, or interfere with any property, moneys, or things in action belonging to him until further order in the premises.

....

IV. That said order was personally served on said defendant on the same day, and said defendant appeared before said referee at the time and place in said order specified, and severally submitted to an examination under oath, and testified as to his property, which examination was on the same day, by said referee, certified to said Judge, who thereupon, by an order, appointed A. B., of, etc., this plaintiff, receiver of all the debts, property, effects, equitable interests, and things in action of said C. D., and further ordered that this plaintiff, before entering upon the execution of his trust, execute to the Clerk of this Court a bond, with sufficient sureties, to be by said Judge approved, in the penal sum of ... , conditioned for the faithful performance and discharge of the duties of such trust, and that this plaintiff, upon filing such bond in the office of the Clerk of the County of . . . . . . . ., be invested with all rights and powers as receiver according to law. The said C. D. was therein and thereby enjoined and restrained from making any disposition of, or interfering with his property, equitable interests, things in action, or any of them, except in obedience to said order, until further order in the premises.

.........

V. That on, etc., he executed a bond, with sureties, as required by said order and the rules and practice of this

* Under sec. 567, Cal. Code C. P., the undertaking must be made to such person, and in such sum as the court or judge may direct. The allegation of the making and filing of the bond should follow the order of the court or judge directing the bond to be given.

court, which was approved by said Judge, and filed in the office of the Clerk of the County of, etc.

VI. [Allege cause of action.]

[Demand of Judgment:]

26. Form. The above form is substantially from McCall's Forms, 270. See Cal. Code, sec. 564, subd. 3; N. Y. Code, sec. 244, subd. 5.

[TITLE.]

No. 82.

iv. By Receiver of Dissolved Corporation.

The plaintiff, as receiver of the ........ Company, complains, and alleges:

I. [State a cause of action accruing to the corporation.] II. That on the . . . . . . day of ........ 187., at

......

........

upon an application made upon occasion of the insolvency of the said ...... Company [or state any other reason which may exist], and by an order of the Hon.

....

Judge

Judicial District,

of the District Court of the State of California, the plaintiff was appointed receiver of the property, and effects, and things in action of the said Company, pursuant to statute.

III. [Allege qualification as in Form No. 79.]

27.

[Demand of Judgment.]

Occasion of Dissolution.-The occasion of the dissolution should be shown: Gillet v. Fairchild, 4 Den. 80; see Tuckerman v. Brown, 11 Abb. Pr. 389.

No. 83.

v. By Receiver of Mutual Insurance Company on Premium Note.

[TITLE.]

The plaintiff, as receiver of the

plains, and alleges:

Company, com

I. That the ... ........ Insurance Company was at the time hereinafter mentioned a mutual insurance company, duly incorporated as such under and by virtue of an act of the Legislature of this State, entitled [title of act], and was duly organized under said Act, to make, etc. [State object of incorporation.]

........

II. That on the....day of... . 187., at the general term of the District Court, of the.. Judicial District,

in and for the County of...... State of California, this

plaintiff was appointed receiver of the stock, property, things in action, and effects of the said Company [upon the occasion of its voluntary dissolution, or otherwise].

III. That thereafter, and prior to the....day of................... 187., the plaintiff gave the requisite security as said receiver, and filed the same in the Clerk's Office of the said County of........, and thereupon entered upon the duties of his office as such receiver, and is now, as said receiver, in possession of the stock, property, things in action, and effects of the said corporation.

IV. That the defendant made his certain note in writing, commonly called a premium note; and, at the date in said note mentioned, delivered the said note, of which the following is a copy, to the said........ Company. [Copy note.]

V. That said policy of insurance expired in one year from the date thereof, and said note formed part of the capital stock of said Company, and which said policy of insurance was issued and delivered to the said defendant at the date mentioned in the said note, and thereby the said defendant became a member of said Company, down to and including the time for which said note was assessed by said plaintiff, as said receiver, to pay the losses and liabilities of said Company, incurred whilst said policy and note were in full force and effect.

VI. That after he had entered on the duties as said receiver, he ascertained the amount of the losses by risks, and other liabilities of said Company; and as said receiver, at........ aforesaid, on the....day of...... ...., 187., did settle and determine the sums to be paid by the several members of said Company, as their respective portions of such losses and liabilities, in proportion to the unpaid amount of his or their deposit note or notes, agreeably to the charter and by-laws of said Company, and did thereafter on said note assess the sum so settled and determined upon to be paid by the several members of said Company, liable to be assessed therefor.

VII. That after the making of the said assessment, as said receiver, he published notice thereof in the. newspaper published in the County of......

...

a

once in

each week for......days, commencing on the....day of

« ΠροηγούμενηΣυνέχεια »