Opinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco.
COUNSEL:
L. Quint, and E. D. Sawyer, for Appellants.
Tilden & Tilden, for Plaintiff and Respondent.
W. H. Payson, for Intervenors and Respondents.
JUDGES: McKinstry, J. McKee, J., and Ross, J., concurred.
OPINION
McKINSTRY, Judge
1. The appellant contends that the demurrer to the complaint of intervention, on the ground of misjoinder of causes of action, should have been sustained. The plaintiff brought his action to obtain a decree that Perazzo account for the value of all the property of the alleged copartnership, etc. As creditors of the partnership, the intervenors were interested in the subject matter of the suit adversely to Perazzo, if, as alleged, he had fraudulently caused the partnership property to be dissipated, or placed beyond the reach of the partnership creditors, by a sale of it, the proceeds of which he appropriated. Perazzo's liability was not limited by the amount which the property brought at the sale, but extended to an amount equal to the value of the property. Yet the proceeds of the sale, or such proceeds with an additional sum which would make an amount equal to the value of the property, were to be treated by a court of equity as a fund in his hands, in which the creditors of the partnership were beneficially interested. True, each of the intervenors had a separate claim to the extent of the partnership indebtedness to him; but as Perazzo was not individually liable to any one or all of them beyond the amount of the fund in his hands, they had a common interest in the fund, which Perazzo had become liable to distribute as the result of his fraudulent conduct, and which a court of equity might very properly distribute without a separate application by each of the intervening creditors.
2. Appellant points out that there was no finding by the court below that plaintiffs or defendants are insolvent. But there is an averment in the complaint of intervention "that said firm have no other property, and said partners are each of them insolvent," etc., which is not denied by the answer.
3. As to the statute of limitations, the intervention was not demurred to on the ground that the limitation had run. The court below [6 P. 451] found adversely to defendant, appealing upon the issue as to the statute, and the evidence is not before us.
Judgment affirmed.