The record-union., 1897-12-08

it was clearly the duty Of Mr.. Robbins,
as the legal representative of the cred
itorS of Cline as an insolvent debtor,
under Subdivisions / and Of Section
% Of said Insolvent Act above quoted.
to have proceeded against any and all
persons of whom he might have had
knowledge as having any estate, debts
or things in action belonging or due to
such debtor.
But it is contended that Robbins. as
an Individual, denied absolutely that
he was indebted to Cline in the sum
for which Walling, as Clines assignee.
brought suit, and that he was there
fore unaware Of any such claim or
chose in action existing in favor Of
the insolvent, and could not have taken
any steps in this direction in behalf
of the creditors. 1t is also contended
that the assignee of the insolvent was
entitled to nothing from this source
until a Judgment was made and enter
ed decreeing that such claim did, as a
matter of fact, exist in favor of Cline;
and such judgment having been made,
although in favor of Walling as an as
signee of the claim. the title to what
ever the judgment involved, immedi-
sentative of the creditors of the in
solvent
The main question to be determined
in this proceeding is however, whether
or not, under all the circumstances of
the case, the plaintiffs herein are au-
thorized to invoke relief through the
instrumentallty of an equitable rem
edy. The solution of this question
rests upon the determination of wheth-
er or rot plaintiffs have plain, speedy
and adequate remedy ait law.
am of the opinion that Robbins, in
his representative capacity, not only
has such a remedy at law as would
preclude him from invoking the aid
of equity, but that he had such rem
edy from the very inception of the
action which was brought by Walling
against him as an individual, and out
of which this proceeding has its orr
gin. In my opinion, 1t was his PLAIN
duty, Notwithstanding the fact that he
denied the alleged Indebtedness claim
ed by Walling as the assignee of Cline,
to have interviewed in behalf of the
creditors in the Justices court.
1t is insisted by counsel for the plain
tiffs that, inasmuch as Justices courts
are courts of limited jurisdiction, pos
sessing no powers or rights except such
as are expressly given them by statute,
and that, inasmuch as there is no ex-
press provision of law authorizing the
right of intervention in such courts,
there is no such remedy afforded
therein, 9nd that the creditors of the in
solvent debtor, or their representative,
We're poWerlesS to act in the premises.
1t is unfortunate that there are few
if any, adjudications by the Supreme
Court, of the practice in Justices
courts; and while 1 have been unable
to lind any cases in the reports of the
decisions of the court of last resort,
passing directly upon this question: l
believe that it has not only been the
common practice to permit intervention
wherever such a proceeding was deem
ed necessary in Justices courts, but
that it was the intention of the Legis-
lature that Section 3S7 of the Code of
Civil Procedure should apply as well to
practice III Justices courts as to that
of Superior Courts. 1t would seem to
me that if the rule were otherwise, it
would, to a great exent, result in the
abrogation of that fundamental maxim
of law, founded in justice and equity,
and which has received the legislative
sanction of our own commonwealth
For every wrong there is a remedy"
COwdery, in his treatise on Justice
courts, Volume l., Section GA, says:
The first California Legislature adopt
ed che Practice Act to govern proceed
ings in the Supreme and District Courts
and Court of Sessions. 1t also adopt
pd Acr rpcrI1la tinU ,o-i in
justices courts. in which certain deas-
ignated sections of the Practice Act
We're made applicable to the last-men-
toned courts. 1t was from time to
time amended It also provided that
the provisions of that act dhe Acts of
1898 and 1850, which are referred to
in it's title, be applicable to Justices
courts and proceedings therein. Then
came the Code of Civil Procedure of
March II, 1872. Under It's provisions.
justices courts were taken out of the
narrow, crooked path along which they
We're Ii boring, and placed as firmly as
their organization permitted on the
broad read Travelled by courts of rec
ord
Sections 145 to 149 of the same work
treat of the right of Intervention in
justices courts, and justify such right
under Section 3S7 Of the c. c. p.
Mr.. Robbins, in his individual capac-
ity, could have denied, as he did. the
Indebtedness. In his representative
capacity, in his complaint in interven-
tion, he could have set forth the fact
of his office as assignee, and have
pleaded that If there was any debt due
from him as an individual to Cline, it
belonged to the estate of Cline as an
insolvent, and that the assignment by
Cline to Walling was void, which would,
in the absence of a showing that the
assignment was made for a purpose
recognized by law, have been a good
defense against the claim of Waling.
All the issues made by his individual
answer and his complaint in interven-
tion, as the representative of the cred
itors. could have been tried and adju-
dicated. And l can conceive of no
reason why, even after the appeal 10
the Superior Court, though the creditors
did not intervene in the lower court
upon a proper showing, they could not
have been permitted to intervene, and
thus have asserted their rights in the
higher court.
Counsel for the plaintiffs cites many
authorities supporting the view con-
tended for by him, that an injunction
will lie to restrain the enforcement Of
a judgment of court of law There
is no room for any controversy upon
this proposition: but l fail to perceive
any parallel in the elements of the case
at bar. so far as the facts are con-
cerned, with those of the cases cited.
The rule laid down by Mr. Pomeroy. in