Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-04-13

assignment, and the assignee is called to ac-
count, then we allege that he has misappro-
priated the funds and has enjoyed the income
of the assets, and with lis coadjutors has
used it for their benefit.
The Court-Some of the creditors con-
sented to the assignment. If the case goes
on without sll the parties being brought IN
and a receiver is appointed and he takes pos
session and distributes, the whole arrange
ment is disturbed. IF all the parties con-
sentsd except the judgment creditors here,
then it could be settled by retaining enough
to secure them. But if there are other par
ties the receiver must be appointed.
Mr.. Catlin-There is nothing in the plead
ings to show all the parties ara not in. There
is q list of names defendant, but there Is no
averment that they have an interest. All
have been brought in the Sheriff could fiud;;
In two and half years it may be assumed
all the creditors have appeared who viii.
After an hours recess the argument was
resumed, and Mr.. Edgerton read Section So,
Code of Civil Procedure, to the effect that
where the parties are numerous, and it IS I'M
practicable to bring them all into Court, one
or more may sue or defend for all where their
interest is common. He thought the Court
could appoint some one to appear Tor IN
served parties. A discussion arose here Us to
how many defendants have not been served,
anu Ollt SuAASCleN Nitli Tie CdSS w
know, and Mr.. Catlin related how one party
had been treated as dead. and his estate
(money in the Odd Fellows Bank had been
administered on, and the administrator con-
scented 10 assign to the Peoples Bank, when
suddenly the dead man appeared and objected
TO being considered decd. He recited this to
show how difficult IL was to ascertain where
the !, 800 depositors all are. He added, citing
authorities, that where trustee winding up
all the bene6ciaIies must be in Court, but it
is q principle, subject It ru in equity,
that where the parties are numerous, and it
is impractlcahle to bring them all in, one may
defend for ali.
The Court-But it is not shown here
that it is impracticable. You claim
your diligence gives you superior right,
But you didnot sue originally. Suppose you 80
on, and some not served have Judgments.
what then?
Mr.. Catlin-There are no other judgment
creditors. There are judgments by some
OF Mr.. Freeman's clients, and they amount
to $3.50, goo, that we hold were obtained by
collision. and form part of the whole con.
spiracy. The trustee or assignee appears
here to sustain the assignment, aud therefore
appears for all the bsneficiaries and if he is
sustained, it il for their benefit. AS to Mr..
traits demurrer, it is not to our pleading.
but TO Smiths, and if he gave no notice Of
its overriding it should not prejudice us.
Mr.. Freeman here read authorities in an
swer to the position of Mr.. Catlin, and hold
ing that no proceedings can be had in the
case that will not affect all who were deposit
ors in the Odd Fellows Bank.
The Court here expressed its surprise at
the condition of the case. He came expect
ing to try the case.
Mr.. Catlin explained that its position was
unexpected TO him also, and stated the recent
record history Of the case.
The Court inclined to think the points
taken against the putting of the case on trial
good, but desired counsel to look over the
authorities, and come on at 10 A. NJ. to-day.
NEW POINTS.
Mr.. Raymond argued the demurrer TO the
judgment creditors cross complaint at length,
holding these positions, which are deemed of
exceeding interest, because like matters are
before the Supreme Court now for decision
and involve The highest consideration: He
held that Mr.. Catlin's clients have no stand
ing in Court on their claims. Their judg-
ments are invalid because based on false
position, there being no sufficient complaint.
The relation OF debtor and creditor does not
exist in California between depositors in saw
ings banks and the corporation. A claim
like that of the judgment creditors in this
case is in fraud of ali the other dep 3sitors.
Depositors deposit in savings banks to make
common fund for investment, and one can
not become judgment creditor, and seek
thereby TO carve cut. by proceedings at law,
any specific part of The trust created by the
act of depositing. The savings corporation
is the agent of the depositor, and that only.
A deposit in savings bank is not loan, and
there can be no contract as for loan.
The Court said, even admitting these points
70 he DonI tna rpr,lnIpt Q 1ipcaj eI,tf.
cient ia that it changes the invalidity of the
transfers of the property to the Peoples
Bank, and he therefore overruled the de-
murrer
The demurrer of the Peoples Bank and
others to the supplemental cross complaint of
thesixteen Judgment creditors was then argued
by Messrs. freeman, Attorney-General Hart,
Catlin and Edgertop, and the Court sustained
them as to the form of statement of certain
parts of the pleading. and Mr.. Catlin took
until this morning to determine if he will
amend, which gives the other side ten days
to answer, or Withdrew his supplemental
cross bill, and again urge the case to trial.