SHAW, C. J.-The appellants ask for a writ of supersedeas. The writ is asked to stay proceedings for the collection of a judgment for $5,955.40 recovered by Luckenbach against Krempel-Preston Company in the superior court of Los Angeles County on January 6, 1919. There are separate appeals, one by the defendant Preston and the other by the three defendants, Chris Krempel, Anna Krempel, and Lucy Hauerwaas. As they both involve the same question they will be considered together.

On April 15, 1919, on application of the plaintiff the court appointed Willard L. Goodwin receiver of the property of said company. On May 3, 1919, the court made an ex parte order purporting to authorize said receiver to sue the above-named appellants or either of them for any amounts due from them or either of them to said company. On May 5, 1919, said Goodwin, as such receiver, began an action in said superior court against said appellants to recover the sum of $164,231.62, alleged to be due from said persons to said company.

On April 8, 1921, Preston moved the court below for an order vacating the two orders of April 15, and May 3, 1919, appointing a receiver and authorizing him to sue, as aforesaid. On April 8, 1921, this motion was denied. On April 26, 1921, the court denied a similar motion by the other appellants to vacate the aforesaid orders.

From these orders denying said motions these separate appeals were taken by the respective moving parties.

Upon these appeals, and by the writ of supersedeas prayed for, the appellants seek to restrain further proceedings by the receiver and in the court below, pending the appeals, in the prosecution of any action or actions against the appellants or either of them based upon debts claimed to be due from them to said Krempel-Preston Company.

The motions to set aside the order appointing the receiver were each made on matters appearing on the face of the record and on the ground that the court had no jurisdiction to appoint the receiver; in other words, that the order was void because of a lack of jurisdiction in the court to make it. If that order was void, the orders purporting to authorize the receiver to sue would also be void. [1] A judgment or order which is void on the face of the

record thereof may be set aside at any time by the court that made it, on the ground that it is void. (People v. Davis, 143 Cal. 675 [77 Pac. 651]; Wharton v. Harlan, 68 Cal. 422 [9 Pac. 727]; People v. Greene, 74 Cal. 400405 [5 Am. St. Rep. 448, 16 Pac. 197].) If the court refuses to vacate such an order on motion, it being an order made after judgment, the party aggrieved may appeal and have the order reviewed and reversed. (Code Civ. Proc., sec. 963, subd. 2.) The appeals herein present just such a question and if the appellants are successful the order appointing a receiver will be vacated and all proceedings thereunder will be rendered null and void, including the order authorizing the receiver to sue on behalf of the corporation defendant.

[2] The writ of supersedeas may be issued by an appellate court in virtue of its "inherent power to secure to the appellant the fruits of a successful appeal, if it can be done without depriving the respondent of a substantial right." (Hill v. Finnigan, 54 Cal. 495; Dulin v. Pacific etc. Co., 98 Cal. 306 [33 Pac. 123]; Williams v. Borkwardt, 115 Cal. 617 [47 Pac. 594]; Brown v. Rouse, 115 Cal. 620 [47 Pac. 601]; Nonpareil Mfg. Co. v. McCartney, 143 Cal. 3 [76 Pac. 653]; McAneny v. Superior Court, 150 Cal. 9 [87 Pac. 1020]; Southern Pac. Co. v. Superior Court, 167 Cal. 252 [139 Pac. 69]; Halsted v. First Nat. Bank, 173 Cal. 610 [160 Pac. 1075].) [3] These cases also show that an application for such a writ is addressed to the discretion of the court. (See, also, 3 Corpus Juris, 1290.)

[4] We think this is a case in which the writ may well be issued. In the court below the receiver is prosecuting an action against the appellants herein to recover of them a large sum of money, greatly in excess of the amount of the judgment against the Krempel-Preston Company. That action is being prosecuted for the benefit of the plaintiff herein solely for the purpose of collecting his said judgment. The defendants in said action have set up the invalidity of the order appointing the receiver in their defense thereto. If that defense is successful the action will fail because of the want of authority in the receiver to maintain the same. (Preston v. Superior Court, 184 Cal. 658 [195 Pac. 916].) That question may not be finally decided in that action until long after the defend

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ants have been compelled to expend large sums of money for conducting the trial and maintaining such defense as they may have on the merits of the action. The present appeals directly involve the question of the validity of the order appointing the receiver, and, consequently, the validity of the order authorizing the receiver to sue and the question of his authority to prosecute that action. These appeals will soon come on for a hearing and the question upon which all this litigation largely depends will then be determined. It is to the interest of all the parties to have the action below suspended until this decision can be made. If this is not done and the appellants are successful in the end, they will be injured to the extent of their expenditures in carrying on the litigation in the court below or on appeal therein if they are unsuccessful below.

The writ will not be issued except upon ample security to the plaintiff herein. He has nothing at stake except the amount of the judgment he recovered against the com. pany. A bond in the sum of $12,000 will be sufficient security for its payment.

It is ordered that a writ of supersedeas issue staying all proceedings in the court below in any action begun by said receiver under and in pursuance of the order appointing him, or in pursuance of the order authorizing him to institute actions against persons claimed to owe debts to said Krempel-Preston Company, upon the execution and filing in this court of a bond in the sum of $12,000, the sureties thereon to be approved by any judge of the superior court of Los Angeles County, and said bond to be conditioned that if the defendants fail in the appeals herein and shall pay any judgment that may be recovered against them in the action of said receiver begun in pursuance of said orders, not exceeding the amount of principal, interest, and costs then due upon the said judgment of plaintiff against said Krempel-Preston Company, then the said bond shall be void; otherwise to be in full force.

Lennon, J., Shurtleff, J., Waste, J., Wilbur, J., and Sloane, J., concurred.

[L. A. No. 6868. In Bank.-February 17, 1922.]

E. W. DAVIES, Respondent, v. J. S. TORRANCE, et al., Appellants.

[L. A. No. 6869. In Bank.-February 17, 1922.]

FRED R. HARRIS, Respondent, v. J. S. TORRANCE et al., Appellants.

[1] PROMISSORY NOTES - EXECUTION BY CORPORATION - PAYMENT BY SURETIES-ACCRUAL OF INDEBTEDNESS.-The indebtedness of a corporation to sureties on a promissory note executed by the corporation, who paid the note, accrued at the time they paid it. [2] ID.-CONTRACT OF SURETIES TO PAY NOTE-FINDINGS-SUFFICIENCY OF EVIDENCE. In this action against stockholders of a corporation on their statutory liability to recover the proportionate amount of a promissory note executed by the corporation, it is held that the evidence was sufficient to sustain the finding that the contract of the plaintiffs to pay the note was made to the payee at the request of the corporation.

APPEAL from judgments of the Superior Court of Los Angeles County. Leslie R. Hewitt, Judge. Affirmed.

The facts are stated in the opinion of the court.

Andrews, Toland & Andrews and Andrews, Toland, Gregg & Andrews for Appellants.

J. Wiseman Macdonald and W. W. Wallace for Respondents.

WILBUR, J.-These actions, consolidated by stipulation, were brought to recover from defendants upon their statutory liability as stockholders in the California Shoe Manufacturing Company, hereinafter called "the corporation," their proportion of the amount of a promissory note, wherein the First National Bank, hereinafter called "the bank," was payee, the corporation was payor, and the plaintiffs were either joint guarantors or sureties. The note was given July 13, 1915, in renewal of an obligation of the corporation incurred June 6, 1911, and was payable upon demand. Both plaintiffs were stockholders and directors, and E. W. Davies was president of said corporation at the time the note was given. Upon the default of the corporation one

half of the amount due thereon, $4,040, was paid March 30, 1917, by each plaintiff to the bank.

[1] If the plaintiffs were sureties for the corporation, then the indebtedness of the corporation to them accrued at the time they paid the note, to wit, March 30, 1917 (Yule v. Bishop, 133 Cal. 574 [62 Pac. 68, 65 Pac. 1094]; Coulter Dry Goods Co. v. Wentworth, 171 Cal. 500 [153 Pac. 939]).

Appellants claim that plaintiffs were not sureties but were guarantors and that, therefore, if they have any remedy against the stockholders at all it is by subrogation or contribution against those who were stockholders at the time the original indebtedness was incurred by the corporation (Redington v. Cornwell, 90 Cal. 49 [27 Pac. 40]), and not against the appellants who first became stockholders September 27, 1913.

The court found that the plaintiffs were sureties upon said note and that they executed the instrument of suretyship at the request of and upon agreement with the defendant corporation. Without directly attacking this finding, appellants argue that the relationship of the plaintiffs to the corporation was that of guarantors, and that they are not sureties within the meaning of our statutes and decisions for the reason that the contract was made without the knowledge or consent of the corporation and in direct violation of the wishes thereof. Our Civil Code (section 2831), defines a surety as "One who at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor." (Italics ours.)

[2] The question for our consideration is whether or not there was sufficient evidence to sustain the finding that the contract of the plaintiffs to pay the note was made to the bank at the request of the corporation. We will pass to a consideration of the evidence and findings not attacked to determine that question.

The trial court found that on June 6, 1911, the corporation became indebted to the bank on a promissory note for $10,000; that on that day plaintiffs became sureties for and guarantors of the indebtedness of the corporation under a written contract of suretyship whereby said plaintiffs guaranteed to the bank the payment of all present and future