Fidelity & Deposit Co. of Maryland v. A. G. Col Co.

In an action then pending in the superior court of California in and for Santa Clara county, entitled California Sweet-Potato Corporation v. A. G. Col Company and Others, on June 30, 1925, the judge of that court made an ex parte order, upon, the verified complaint, appointing one Col as receiver of the defendants’ properly. Col qualified by taking the official oath and giving a bond in the penal sum of $5,000, with the appellant herein as surety. He acted as receiver only two or three days and was superseded by Napoli, who continued in office for several months, until both orders of appointment were vacated by the Supreme- Court of the state in a prohibition proceeding. See A. G. Col Co. v. Superior Court, 196 Cal. 604 , 238 P. 926 . In the instant ease, which is a suit on the Col bond above referred to, the jury returned a verdict of $6,300, which was, admittedly, in excess of any possible liability by about $1,100, and, appellee having offered to remit the excess, judgment was entered against the surety for $5,200, and from that judgment it prosecutes this appeal.

We find it necessary to discuss but a single question. The theory upon which the action was brought is that the…