Orena, 91 Cal. 565, 25 Am. St. Rep. 219, 27 Pac. 924; Pomeroy's Equity Jurisprudence, sec. 1007. To these may be added the more recent cases of Curtis v. Schell, 129 Cal. 208, 79 Am. St. Rep. 107, 61 Pac. 951; Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Rep. 98, 67 Pac. 282, and Aldrich v. Barton, 138 Cal. 220, ante, p. 43, 71 Pac. 169. In Griffith v. Godey, 113 U. S. 89, 5 Sup. Ct. Rep. 383. Mr. Justice Field said: 'If the property be omitted by mistake, or be subsequently discovered, a court of equity may exercise its jurisdiction in the premises and take such action as justice may require. . . . And a fraudulent concealment of property, or a fraudulent disposition of it, is a general and always existing ground for the interposition of equity.' We are aware of the rule that the fraud which will prevail to set aside a judgment or decree must be extrinsic and collateral to the questions examined and determined in the action: Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537; Hanley v. Hanley, 114 Cal. 690, 46 Pac. 736; Mulcahey v. Dow, 131 Cal. 73, 63 Pac. 158. It was said in Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, that 'it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony': See Fealey v. Fealey, 104 Cal. 354, 43 Am. St. Rep. 111, 38 Pac. 49. It would seem to us, however, that the complaint brings to light transactions which were not embraced in the guardian's account, but are extrinsic and collateral to the matters set forth in it. The case made is quite as strong as the facts presented in the recent case of Aldrich v. Barton, 138 Cal. 220, ante, p. 43, 71 Pac. 169. The theory generally underlying the refusal of equity courts to vacate decrees is, that the complaining party has had his day in court, and that there must be an end of litigation, and that titles would often be thus disturbed and rendered uncertain, and the innocent be made to suffer. Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Rep. 98, 67 Pac. 282, is a striking illustration of the flexibility of equity jurisdiction where to do justice to the injured and innocent and pursue the guilty the decree was not disturbed, but the party fraudulently benefited by it was held to be a trustee, and equity laid hold of him as such, leaving the original decree as to others unaffected. The case here, as made in the complaint, appeals strongly to the conscience of the chancellor. Plaintiff's mind for some time had been in an eclipse; he was adjudged an incompetent, and his business had, under the highest trust, been placed in defendant's keeping. Within two days after plaintiff was restored to capacity defendant filed his account, and within twelve days obtained its approval and his discharge as guardian. There is nothing unreasonable in plaintiff's assuming at the time that the account rendered was true and correct, and in his not discovering otherwise, as is alleged, until it was too late. An appeal would not have availed him, for the fraud did not appear in

the record, and a motion would not have reached the mischief, because there was an appeal: Wickersham v. Comerford, 96 Cal. 433, 31 Pac. 358. Nor is there anything unreasonable in the court now, in the exercise of its equity powers, calling upon defendant to further account to plaintiff and to pay over to him any moneys which may appear by proofs to belong to plaintiff, by reason of the alleged frauds and concealments of his guardian while discharging his trust. No one can be injured by such an accounting; no titles are involved, and no innocent persons will suffer. The rule of law which sanctions such a proceeding is wholesome, and shoud serve as an admonition to administrators, executors, guardians, and trustees generally, that they must, to the last moment of their trusteeship, scrupulously account for every dollar that has come into their hands in their trust capacity."

Relief in Equity against judgments on the ground of fraud and perjury is considered in the monographic notes to Pico v. Cohn, 25 Am. St. Rep. 165-171; Little Rock etc. Ry. Co. v. Wells, 54 Am. St. Rep. 232-240; Furman v. Furman, 60 Am. St. Rep. 649-651. If a widow, as executrix under her husband's will devising property to his children, conspires with her son, who is not the son of the testator, to procure for him a share of the property as one of the children, and files a petition naming such children and alleging that her son is one of them, and obtains a decree that he is a child of the testator and entitled to a share in the estate, without notice to the testator's children of the fraudulent proceeding, except such as they have by reason of the executrix being their testamentary trustee and guardian, though equity has no jurisdiction to set aside the probate decree, it may compel the son, as trustee for the children of the testator, to make conveyance to them of the share thus obtained by him, or, if a conveyance cannot be had, to account to them for the value thereof: Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Rep. 98, 67 Pac. 282.

PAINTER v. PAINTER.

[138 Cal. 231, 71 Pac. 90.]

RECEIVER.-A Judgment Against the Receiver of a partnership in a suit by leave of court on a claim in the nature of costs incurred by him in managing the business, is conclusive against the surviving partner and creditors, whether made parties to the action or not. (p. 52.)

RECEIVER.-A Judgment Against a Receiver cannot be enforced by execution; the practice is to apply to the court for an order to enforce it. (p. 52.)

RECEIVER-Propriety of Appointing.-Upon Appeal from an order to enforce a judgment rendered against a receiver, whether

he should have been appointed, and where the fault lies, if any, in his administration, will not be considered. (p. 53.)

RECEIVER-Payment of Judgment Against.—If a judgment is recovered against a receiver of a partnership for funds advanced to him to publish a directory, and the publication results in a loss, it is not error to order the judgment satisfied out of any of the assets of the firm except the directory business. (p. 53.)

RECEIVER-Satisfaction of Judgment Against.-The contention that a judgment creditor should abide a final settlement of the accounts of a receiver, and that in obtaining an order to enforce the judgment he should make other creditors parties, is without merit where it does not appear that payment of the judgment will (p. 54.) exhaust the estate or prevent creditors from being paid.

Pringle & Pringle, for the appellants.

M. B. Kellogg, Edward Mills Adams and Francis J. Heney, for the respondents.

On

232 VAN DYKE, J. This is an appeal by defendants from an order authorizing and directing A. O. Colton, as receiver of the firm of Painter & Co., in the said cause, to pay the judgment rendered in the superior court of the city and county of San Francisco, in favor of the J. B. Painter Company, as plaintiffs, against A. O. Colton, said receiver, as defendant, in the sum of $11,085.73, and to sell sufficient of the real and personal property of the said firm of Painter & Co. to pay said judgment. The court found that from October 1, 1865, to February 6, 1883, Jerome B. Painter and Theodore P. Painter, were partners, under the style of Painter & Co. February 6, 1883, Jerome died, and thenceforward Theodore has been, and now is, the surviving and only partner of said firm. The J. B. Painter Company is, and since September 21, 1894, has been, a corporation. On December 13, 1894, O. Colton became, and ever since has been, the duly appoin and qualified and acting receiver of said firm of Painter Co., appointed by the court on plaintiff's application in the now pending in said court. The order of appointment was for the receiver "to take immediate possession of all the books, papers, vouchers, securities, and of all the property of every nature and kind belonging to the firm of Painter & Co., and thereafter to hold, manage and control the business and property of said firm, . . . . and generally to do such acts respecting the property as the court may from time to time authorize, and finally to dispose of the same as the court shall It appears also that the assets of the firm consisted.

action 233

direct."

among other property, of a plant for the manufacture and

sale of type and printers' materials, solvent credits, rcal estate in San Francisco, and the right of publication of Langley's San Francisco Directory, and it was found by the court that the compiling and publishing of this directory was a part of the business of the firm intrusted to the receiver. Part of the business relating to the manufacture and sale of printing materials was conducted by the receiver at a loss, and was discontinued in 1895, but the publication of the directory he conducted for several years, and until 1894, inclusive, at considerable profit. In December, 1894, the receiver found himself without means sufficient to publish the directory for 1895, and thereupon filed a petition in said cause for authority to accept an offer of said J. B. Painter Company to publish said directory for the year 1895 under direction of the receiver, and to authorize the receiver to enter into a contract with said corporation for said purpose and on the terms proposed by it. Notice was duly served upon the attorneys for the plaintiffs and defendants in said action, together with copies of the affidavits and papers on which the motion would be made. On January 11, 1895, the court made an order granting the receiver's petition, and on January 18, 1895, the contract referred to was duly made and executed pursuant to the order of court. It is further found that the corporation performed all the conditions of its contract, in the course of which, and "in accordance with the terms of said contract, loaned and advanced to said receiver all the funds necessary for the compilation and publication of Langley's Directory," and a full and detailed statement of the money advanced and money received by the corporation is set out in the findings, showing advancements in excess of receipts amounting to $8,316.56 principal, on which, as interest on the same by the 234 terms of the contract, the court found to be due the further sum of $2,769.17, in all $11,085.73. On February 3, 1896, the corporation presented its claim to the receiver and demanded payment, which being refused, the corporation, by leave of court, brought its action to recover said amount against said receiver, making the firm of Painter & Co. and Theodore P. Painter, as surviving partner of said firm, defendants thereto. The receiver and the said surviving partner of said firm answered to the action. At the trial, after plaintiff had rested, and on motion of defendants Painter & Co. and Theodore P. Painter, the cause was dismissed as to them and proceeded against the defendant the receiver, and judg

Am. St. Rep., Vol. 94-4

ment was entered in favor of the J. B. Painter Company against said receiver on October 19, 1897. No appeal was taken from this judgment and no motion for a new trial was made. On March 31, 1898, the corporation made application in the present cause, by petition, setting forth all the facts leading up to its judgment, for an order authorizing the receiver to pay said judgment, and for that purpose to sell sufficient of the real and personal property of the firm of Painter & Co., and that the parties to the present action be required to show cause why such order should not be made. At the time this application was made there was pending in said action also the application of Adaline Mininger and Josephus Painter for orders of the court, filed some time in April, 1897, authorizing the receiver to pay the several amounts alleged to be due them by Painter & Co., as set forth in affidavits, as shown in the transcript. The receiver filed affidavits in answer to these last-mentioned applications, pleading, among other defenses, the statute of limitations. It appears that on March 31, 1898, the court denied these lastnamed applications "without prejudice," and made an order that the receiver and the parties to this action show cause why an order should not be made in accordance with the petition of said corporation, copies of which were ordered served on said named parties, and were so served. Neither said plaintiffs nor said receiver showed cause why said application should not be granted, nor did they answer. The defendant Theodore P. Painter answered the application of the corporation and objected thereto on the grounds-1. That the said judgment in favor of the corporation is not final, for 235 the reason that this defendant has filed his bill in equity against the receiver and said corporation, to set aside said judgment and grant a new trial, because of errors of law and insufficiency of the evidence to justify the findings; that by the refusal of the receiver to appeal from said judgment in favor of the corporation, said defendant Theodore P. Painter, as surviving partner of Painter & Co., lost the opportunity of obtaining a review of the proceedings by the supreme court; and that by said bill in equity this defendant seeks to enjoin the corporation from collecting said judgment and said receiver from paying the same, and said action is now pending in said superior court, and is undetermined. (These proceedings do not appear in the record.) 2. That said judg ment is not binding on this defendant Theodore P. Painter, nor on the firm of Painter & Co., or the assets thereof, because