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7 Cal. 551

Baker v. Bartol

California Supreme Court

Decided July 1, 1857

California Supreme Court · decided 1857-07-01

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>Baker having commenced a suit in equity against Bartol, praying for the appointment of a receiver, and other relief, the Superior Court made an order therein, at the suggestion of Bartol’s counsel, that if Bartol, within five days, filed a bond conditioned to account in the sum of sixteen thousand dollars, the motion for a receiver would be denied. Bartol accordingly filed such bond, signed by himself as principal, and J. L. Riddle and I. Ward Eaton, as sureties, which bond was made payable to the People of the State of California. In this suit, a final decree having been rendered against Bartol for the sum of nineteen thousand nine hundred and twenty-five dollars and sixty-five cents, and two hundred and twenty-three dollars and eighty cents costs, a copy of such decree was served upon the makers of the bond, and payment demanded, which being refused, plaintiff brought this suit thereon. Ward and Riddle denied tneir liability, on the ground that the bond being payable to the State of California, plaintiff had no right to sue thereon, and that the order of the Superior Court, requiring Bartol to file the bond, was void. Judgment was rendered in favor of plaintiff. Defendants moved for a new trial, which being denied, they appealed.</p>

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Decided 1857-07-01

How this case has been cited

Cited by 8 later decisions — most recently May 1983

8 state decisions

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Murray, C. J.,

¶1delivered the opinion of the Court—Bubnett, J., concurring.

¶2This is an appeal from an order overruling a motion for a new trial. The plaintiff filed a bill in equity against Bartol and others, to enforce an interest in a trust-fund, which had been assigned to Bartol, alleging fraud, etc., and prayed for a receiver, pending the litigation. The Court below refused the order for a receiver, provided said Bartol would file a bond to account as receiver for all goods and moneys which had come into his possession, belonging to the defendants, and to pay them over according to the decree of the Court. A bond was given in conformity with the order of the Court, payable to the State of California; a judgment for twenty thousand dollars was rendered against the defendants, a copy of which was served on Bartol, and payment demanded, which was refused, and thereupon this suit was brought upon the bond.

¶3The appellants contend—

¶41. That they are not liable, because the Court had no power to exact a bond from Bartol; and,

¶52. That the suit should have been brought in the name of the State.

¶6It is true that the Court had no power to compel the defendant to execute the bond in question, but it undoubtedly had the power to appoint a receiver, and if Bartol chose to execute a bond, rather than pay the money over to the officer of the Court, it was a voluntary act upon his part, and the bond was good as a common law bond. In this respect, he is not to be considered as a receiver or officer of the Court, but as party who, for a per*554sonal accommodation, has assumed a legal responsibility, and after receiving its benefits on his part, should be estopped from denying its legality.

¶7This view of the case disposes of several objections to the judgment, arising out of the supposed nature of the contract of the sureties.

¶8The second ground of error is untenable. Formerly, where a bond was given to an officer, State, or corporation, suit had to brought in the name of the party holding the legal title, for the " benefit of the persons interested, but our statute has introduced a new rule, and by the provisions of the Practice Act, the suit must be prosecuted in the name of the real party in interest. The declaration and bond show, beyond all doubt, that Baker, the present plaintiff, is the true party in interest, and there was no error in declaring in his own name.

¶9Judgment affirmed.

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