Menke

On January 18, 1897, one Werner H. Menke, being insolvent, made to the defendant Lyndon, who was the sheriff of Santa Clara county, an assignment of property in trust for the benefit of his creditors under the provisions of section 3449 of the Civil Code, as amended in the year 1895. Thereupon the sheriff called a meeting of the creditors, as required by said statute, “for the purpose of electing one or more assignees in the place and stead of the said sheriff.” At the meeting thus called the sheriff presided and declared as the result of the vote of the creditors that the defendant Roemer was duly elected assignee. The sheriff was about to deliver to Roemer, as such assignee, the property of the assigning debtor, when plaintiff brought this action to restrain such delivery, and to have the supposed election of Roemer judicially declared void. In his complaint, duly verified, plaintiff alleged that he was a creditor of said debtor at the time of said assignment, and yet is, to the amount of $13,269. He applied for an injunction pending the action; his application was denied by the court, and this is an appeal from the order denying the same.

Said section 3449 of the Civil Code…