Shively

This case has been before the supreme court on a former appeal. It is reported in Shively v. Eureka etc. Co., 129 Cal. 293 , [ 61 Pac. 939 ], to which we refer for a statement of the issues presented by the pleadings. The case was reversed because of the insufficiency of the allegations of the complaint in intervention and of the corresponding finding to show a personal indebtedness of Ludlum and Swezey on account of the alleged assessment of their stock in the defendant corporation. But in response to plaintiff’s prayer that judgment be rendered for him on the findings, the supreme court declared: “The findings, however, would not justify a finding for the plaintiff. A fraudulent conspiracy is alleged in the complaint in intervention, and, in the absence of findings disposing of these issues, we would not be justified in rendering judgment for the plaintiff.” The decision of the supreme court eliminated the question of the indebtedness of Ludlum and Swezey, two of plaintiff’s assignors, to the corporation, and "also determined the authority of the intervener to appear and defend for the corporation. Subsequently the intervener died, and her administrator, Powell, was substituted.…