The herald., 1897-02-16
LOCAL RAILWAY DIFFICULTY
The Receivers Pay In the Los Angeles and
Psciflc Railway Case Withheld

In the case of l.. A Grant, plaintiff
and appellant, against Los Angeles and
Pacific Railway Co., ct AL, defendants
and respondents the decision of the su-
preme court dismissing the appeal from
the order of substitution and reversing
the order fixing the compensation of the
receiver. was received yesterday.
The appeal was taken in this suit from
two orders of court. the first fixing the
compensation OF one Silver as receiver
in the action, and the other denying an
application of the appellant, Grant, to
vacate a former order substituting him
as plaintiff in the action, in place of
the California bank, the original party
plaintiff.
Respondents objected that the orders
were not appealable and that both ap-
peals should be dismissed, and asked
that such disposition be made.
As to the order of substitution" says
the court, this objection is we'll taken.
The statute gives no appeal from such
an order, and it is subject to review only
on appeal from the final Judgment.
AS to the order fixing the receivers
compensation while not nominally one
from which the statute authorizes a di-
rect appeal. and while it sufficiently
appears that it is not a special order,
made after final judgment it is never
theless an adjudication from which an
appeal will lie. The order not only
fixes the compensation of the receiver,
but bases such compensation as costs
in the action as against all the parties,
ana directs and authorizes the receiver
to apply toward its payment the balance
of fund remaining in his hands, as such
receiver.
such an order, however it may be
designated. is in legal effect a final judg-
ment upon a collateral matter. arising
out of the action and is appealable by
any party interested in the fund. The
appellant has such an interest
"Appellant contends that the order
appointing the receiver in the action was
absolutely void upon its face, for want
of jurisdiction in the court to make it;
and that the order fixing the compensa-
ton of the receiver, being founded there
on, is equally void
That the order appointing the receiver
was void is not denied by defendant, and
has been so held by this court in two
cases in which that particular order was
under review; when it was held that the
action was not one in which receiver
could be competently appointed
Respondent contends. however, that
notwithstanding the absolute nullity of
the order appointing a receiver, the ap-
pellant is not at liberty to urge that
objection nor to plead the inValidity of
the present order; that the receiver was
appointed at the request OF the Califor-
ria bank, the original plaintiff. thereby
estopping the bank from questioning
the regularity of said appointment and
that appellant, having been substituted
for the bank, as plaintiff. is likewise
estopped. But, assuming that the bank
would be estopped. which is not to he
determined, we do not think that appell-
ant can be held to rest under any such
jncapacity. The record discloses that
on the commencement of the action. on
the application of the then plaintiff, the
California bank, and by consent of the
company, one Spillman was appointed
receiver. A few days subsequently,
certain other creditors of said defend
ant interviewed in the action, and at
once interposed objections to the con-
tinuance of Spillman, as receiver; that
thereupon the latter resigned and the
present receiver was appointed, at the
request of the interVenors. Appellan.
! was not then a party to the action, and
| did not become such until some consid-
| cradle time thereafter. He had nothing
| to do with such appointment, and has
| not, so far as appears. ever done any,
| thing looking to the affirmation or rat
| ifiCation of the action Of the court in
| appointing said receiver. other than the
mere fact of taking an assignment of the
| notes sued on by the bank. and thus max
| ing himself a party to the action. This
| Of itself is not sufficient to estop or pre-
| clude him from making the order now
| urged.
In purchasing the interest of the
bank in the litigation appellant did not
| assume the liability OF the bank to the
| receiver, if any such rested upon it, nor
| can he be presumed to have so intended
! The order appointing the receiver being
| void, the presumption would be that APP
| rellant took the assignment of the notes
! with knowledge, and in view of that
| fact. That order had by the judgment
of this court, been declared void more
| than three months prior to the date
| when appellant was substituted as q
| party to the action That order beins
| void, the present order must, of neces-
| sity, be held as to appellant, likewise
| void.
1T is urged by respondent that the
receiver should be paid for his service.
| by some one; but if so, that obligation
| should rest upon those who sought anC
| procured his appointment.
THE appeal from the order of substi
tuition is dismissed; the order fixing tn,
compensation of the receiver is re
| Versed."
CHALLENGING TAX SALES