Mercantile Tr. Co. of S.F. v. Miller

This is an application to this court for a writ of mandate to compel the superior court of Kern County to order, and I. S. Miller, as county clerk of said county, to issue, a writ of execution upon a decree of foreclosure entered by said court in an action wherein Mercantile Trust Company of San Francisco is plaintiff, and Sunset Road Oil Company and others are defendants. The following are the facts and circumstances upon which the application is made.

In 1905 the Sunset Road Oil Company executed to Mercantile Trust Company of San Francisco a mortgage or deed of trust to secure an issue of its bonds amounting to something- over one million five hundred thousand dollars. The Kern Valley Bank purchased these bonds to the amount of $459,400, and W. S. Tevis, C. N. Beal, and H. A. Blodgett claimed to have purchased one million dollars thereof and over. Thereafter the Sunset Road Oil Company failed to pay the interest on the bonds, and the Trust Company thereupon began an action in the superior court of Kern County to foreclose said deed of trust for the benefit of the bondholders. The deed of trust provided that in case of a sale under foreclosure of said deed of - trust any holder…

I concur in the order denying the writ of mandate and place my concurrence solely on the ground that the giving of an undertaking on appeal by the superintendent of banks is dispensed with by the provisions of section 1058 of the Code of Civil Procedure, as pointed out in the opinion of Justice Shaw. I am not prepared to agree with the construction of section 946 as stated in. that opinion. In my opinion a consideration of that section is not necessary to the decision of this case and I express no opinion as to its meaning or effect as applied to this proceeding.

Melvin, J., concurred.

Rehearing denied.