Pacific Coast Law Journal. VOL. 2. DECEMBER 7, 1878. No. 15. Current Topics. WE begin this week with the publication of the important decisions of the United States Supreme Court. The case of Orvis vs. Powell appears in this number, involving a principle applicable to our practice. We have in hand the full opinion in Palmer vs. Low, a synopsis of which we gave in our last week's issue; and the opinion in Cook vs. Commonwealth, which decides that a tax laid by a State on the amount of sales made by an auctioneer is a tax on the goods sold; and where the goods are imported goods, in the original packages sold for the importer, the law authorizing the tax is void as laying a duty on imports. WE call attention to the following case appearing in this number: In the matter of Flanagan, in bankruptcy. The opinion in this case determines a new question in regard to the practice in the U. S. District Court where two petitions in bankruptcy have been filed against the same party. In this case involuntary proceedings were inaugurated, but before an adjudication the alleged bankrupt proposed a composition, which was accepted. Prior to the filing of the involuntary petition one of the creditors had attached, and he refused to accept the terms of the composition, and would not release his attachment, there being no adjudication. The composition failed, and the bankrupt filed his voluntary petition and was adjudged a bankrupt. The attaching creditor petitioned the court to set the adjudication aside for want of jurisdiction on account of the pendency of the involuntary petition. The court denied the motion. Naphtaly, Freidenrich & Ackerman, for the bankrupt. Supreme Court of California. NOVEMBER TERM, 1878. [No. 5,141.] [Filed December 2, 1878.] SHAW, RESPONDENT, VS. WANDESFORDE ET AL., APPELLANT. WHEN the court below has filed findings, but has failed to find upon a material issue raised by the pleadings, the judgment will be reversed. Appeal from the Third District Court, city and county of San Francisco. Roche & Robinson, for appellant. Gray & Haven, for respondent. MCKINSTRY, J. The complaint alleges that the defendants "other than J. B. and Mary Wandesforde hold liens of record upon the said premises described as aforesaid." Among the defendants are Page, Sampson, Dolbeer, and Carson, comprising the firm of Page & Co.; and also Taylor and Little, comprising the firm of Taylor & Company. The defendants, J. B. and Mary Wandesforde, aver in their answers that Page & Co. were, on the 8th day of September, 1872, creditors of plaintiff in a certain sum for lumber and materials theretofore sold and delivered to plaintiff, which lumber and materials were actually used by said plaintiff in the construction of the building and "in the performance of that portion of the work embraced in Exhibit A (written contract), which plaintiff performed," etc. That on the 8th day of November, 1872, and before the expiration of thirty days next ensuing the completion of the building, a lien was filed in due and proper form (giving the substance thereof). That by reason thereof Page & Co. claimed a lien, etc. "That afterward, to-wit: in the month of December, 1872, and within ninety days from the said 8th day of November, 1872, and while the said claim was still unpaid, this defendant paid to said Page & Co. the said amount of five hundred and one, and fifty-one onehundredths ($501 51-100) dollars, in gold coin of the United States, and said Page & Co., in consideration thereof, assigned and transferred to this defendant all their right, title, and interest in and to said claim." The answers contain similar averments in respect to the claim and lien of Taylor & Co., mutatis mutandis. There is no finding in respect to these allegations-allegations which, by virtue of the provision of the Code of Civil Procedure, the plaintiff is supposed to have denied. That the issue is material can not be doubted. If the allegations of the answers are true, defendants are entitled to a credit to the amount of the sums paid to Page & Co. and Taylor & Co. The judgment must be reversed for want of necessary findings. Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith. We concur: CROCKETT, J. NILES, J. RHODES, J. WALLACE, C. J. [No. 5,557.] [Filed December 2, 1878.] CLARK, ADMINISTRATOR, ET AL. VS. CITY AND COUNTY OF SAN FRANCISCO ET AL. 1. The C. H. and R. Association made application to the Board of Supervisors of San Francisco for a parcel of the outside lands, under the ordinances of the city and county and statutes of the State applicable to the disposition of such lands; caused its claim to be delineated on the "Outside Land Map," paid the assessments and taxes thereon, and proved its right and possession to the satisfaction of the Board. A portion of the land claimed was taken for a park under the ordinances and statutes aforesaid. The plaintiffs had themselves previously conveyed to the association. Held: that plaintiffs who now claim an interest in the land awarded to the C. H. and R. Association, but who made no application to the Supervisors, nor notified the Board of their claim; who did not have their claim delineated on the map, nor pay any assessments or taxes, can not maintain an action against the City and County of San Francisco for a part of the assessed value of the land so taken for the park. 2. Prior to the Codes, when a corporation was dissolved, the directors continued to be trustees of the creditors and stockholders for certain purposes; or in case the directors died subsequent to the dissolution, the District Court could appoint new trustees for like purposes; such trustees were necessary parties to an action affecting the property of the corporation, without whose presence as parties the legal title of the corporation to real estate could not be transferred, its affairs settled, or its property distributed. Appeal from Fifteenth District Court, city and county of San Francisco. Sharp & Sharp and Naphtaly and Neumann, for appellants. Barstow, Stetson & Houghton and W. C. Burnett, for respondent. MCKINSTRY, J. Plaintiffs ask judgment that the city and county pay to them three-eighths of the moneys assessed as the value of certain outside lands taken for a public park. The case shows that plaintiffs had no claim delineated on the "Outside Land Map," and were therefore not within the category of those recognized by the ordinances and statutes relating to the lands in which they now assert a right. It further appears that the lands were delineated on the map at the request and in the name of a corporation-the "Citizens' Homestead and Road Association;" that plaintiffs never paid the taxes and assessments on the lands, but that the same were paid by the Association, and that no copy of the complaint was filed with the Clerk of the Board of Supervisors, nor did plaintiffs otherwise attempt to intervene between the Board and the Homestead Association. (Statutes 1867-8, Sections 4 and 8; Statutes 1869-70, Section 3.) Under these circumstances, it is obvious that plaintiffs have no claim against the city and county. Nor does the record show a case against the other defendants. Assuming-as is claimed by plaintiffs-that the corporation was dissolved by the expiration of the period of its existence, as declared in the articles, the persons who were its directors at the time of the dissolution continued as trustees of the creditors and stockholders, with full power to settle the affairs of the corporation, to collect and pay the outstanding debts, and divide among the stockholders the moneys and other property remaining after the payment. of the debts and necessary expenses. (1 Hittell's General Laws, Arts. 761-2.) And if the places in the Board of Trustees became vacant, or plaintiffs were dissatisfied with the trustees (after the dissolution), they could have had trustees appointed. (Id., Art. 763.) After the dissolution, such trustees were necessary parties to any action affecting the rights or interests of the late corporation in property, real or personal. If the deeds made by Rowell and Flanagan, "pretending to act as President and Secretary," were void, the trustees could complain, because the lands attempted to be conveyed were still the lands of the corporation, or of themselves, by operation of law, successors to the legal title in trust for the stockholders. The plaintiffs, as individuals, have no legal estate in the lands which they conveyed to the corporation. If, as stockholders, they could have commenced proceedings by bill to have the deeds executed by Rowell and Flanagan set aside, and to have the property of the late corporation properly applied and distributed, the trustees, representing the stockholders in the late corporation, would have been necessary parties to such proceedings, without whom no final decree could have been entered. They alone were empowered to settle the affairs of the corporation, and make proper application of its assets. Certainly, plaintiff's claiming to have some interest in the lands which had stood in the name of the corporation would not be entitled to a decree requiring the apparent grantees of the corporation to convey the title to them, without any regard to the creditors |