Marsh v. Superior Court

Assignment for Benefit of Creditors — Appointment of Trustee by Court — Order Removing Trustee — Certiorari — Insufficient Petition. — A petition to the supreme court for a writ of review to annul an order of the superior court removing a trustee who had been previously appointed in place of a deceased assignee of an insolvent firm, to whom a deed of assignment had been made for the benefit of its creditors, and appointing another trustee in his stead, is insufficient to authorize the issuance of the writ, if it does not aver or show that the order was made without notice to the removed trustee, and that the petition for his removal did not charge that he had violated or was unfit to execute the duties of trustee under the deed of assignment. Id. — Cause for Removal of Trustee — Pleading — Conclusion of Law. — An averment, in the petition for a writ of review, that the petition asking for the removal of the assignee contained “ no allegations of any legal cause ” why the said assignee should be removed is simply a statement of a conclusion of law, and is not equivalent to an allegation that the petition did not charge that the assignee had violated or was unfit to execute the duties of trustee under the deed of assignment.

Application to the Supreme Court for a writ of review to the Superior Court of the city and county of San Francisco. The petition averred that the petitioner was a creditor of the firm of Blum, Eppstein & Co., which firm had executed a deed of assignment for the benefit of creditors to G. Friedlander; that afterwards the said Fried-lander died, but that at the time of his death he had filed no account of his administration of the insolvent firm, and that he had a large amount of money and property in his possession as assets of the insolvent firm; that afterwards, upon the petitioner’s application, B. T. Whiteside was appointed assignee and trustee of the creditors of the insolvent firm; that thereafter an order was made purporting to revoke the order appointing Whiteside, and appointing Sigmund Greenebaum; that the order appointing Greenebaum was in excess of jurisdiction, because no action had been commenced for the removal of said Whiteside as such trustee, and no proofs were made or offered to the court, nor did the court find that Whiteside had violated or was in any manner unfit to execute the trust imposed upon him, nor had he resigned the trust, nor was there any vacancy existing therein, but that the said order was made on a petition of certain persons claiming to be creditors, containing no allegation of any legal cause why said Whiteside should be removed and said Greenebaum appointed; that the said Greenebaum is attempting to execute the trust in an improper manner and to the prejudice and injury of the petitioner; and that as petitioner has no plain, speedy, or adequate remedy by appeal, he prays for a writ of review to the said superior court.