Credits Commutation Co. v. Superior Court

I dissent from the order denying a rehearing and from the judgment which now becomes final. The distinction which the court endeavors to make between this case and Green v. Hebbard, 95 Cal. 40 , rests upon the assumption that if this appeal had been taken direct from the order requiring the receiver to pay over the funds in controversy, the appellant, to stay proceeding upon that order, would have been obliged to give an undertaking in double the amount of the money to be paid. This is apparent' from the following passage in the opinion: “Upon an appeal direct from an order directing the payment of money there can be no stay of proceedings, unless the appellant give an undertaking in double the amount of money named in the order. Upon this appeal from the order refusing to vacate the former order, there is no provision requiring such an undertaking, and the appellant asks for this supersedeas to stay the payment of this money upon the three-hundred-dollar undertaking alone, which is practically no security for the damages involved.”

The assumption contained in this paragraph is absolutely ■opposed to what this court has several times decided.

In Estate of Schedel, 69 Cal. 241 ,…

This is an application for a writ of supersedeas. In the superior court of San Diego County, on July 7, 1897, an action was begun, entitled Free Gold Mining Co. v. James Spiers et al. Charles W. Pauly was appointed receiver, and on June 21, 1902, an order was duly and regularly made settling his account current as receiver, and directing him to pay out of the moneys in his hands, as such receiver, certain claims for expenses incurred by Isaac Trumbo, a former receiver in the action, amounting to over forty-nine thousand dollars. On October 10, 1902, the petitioner herein appeared and asked leave of the court to file a petition in intervention in the action, which was afterwards denied by the court; but as it does not affect the present proceeding, it need not be further noticed. On February 6, 1903, it again appeared in the said action and moved the court to vacate the order of June 21, 1902, settling the receiver's account and directing the payment of the claims, which motion was dismissed by the court. This, in legal effect, was the equivalent of a denial of the motion. (Davis v. Hurgren, 125 Cal. 48 ; Lang v. Superior Court, 71 Cal. 491 ; Voll v. Hollis, 60 Cal. 569 ; Warden v.…