stated that he has abandoned this proceeding for the reason that the "new" board reappointed him on January 8th, of this year and thereafter he presented a new bond to the judge of the superior court, which was approved by him and was thereafter filed as provided by law. As to Nielsen, therefore, the refusal of the judge to act upon his first bond is of no further consequence. Passmore, however, insists that the "old" board had authority to appoint him for a period extending nearly four years beyond the end of their term and that he is the legally appointed county superintendent of schools. [1] It is apparent, though, that we cannot in this proceeding finally determine the title to this office; in other words, which of the two competitive appointees is the legally constituted superintendent of schools of said county. It is conceded that such question can be determined only in quo warranto proceedings. (Satterlee v. San Francisco, 23 Cal. 314; Buckner v. Veuve, 63 Cal. 304; 32 Cyc. 1415.) We understand that steps have been taken to so determine it and it would be idle to attempt to forestall the result of such proceeding.

[2] It may be admitted that the existence of contesting claimants of the office is no valid objection to the approval of a bond. In such proceding a prima facie showing of title is all that is demanded of one who presents the bond for approval. [3] We do not mean to say that the judge would be required to approve the bond if it appeared to him from an examination of the law that the appointment or election of the applicant was entirely illegal, but that it is not his province in such proceeding to determine disputable questions of title as would be proper in quo warranto.

But this consideration is really beside the mark, because Mr. Passmore by the following allegation of his answer has shown that the judge did approve his bond: "That after said appointment on November 18, 1922, official notice having been received thereof, the said Irvin Passmore immediately accepted the position, and within the time allowed by law, filed his oath of office and his bond conditioned for the faithful performance of his duty as such County Superintendent of Schools, and which bond was duly approved by the Judge of the Superior Court of the County of Butte and thereafter duly filed and recorded."

60 Cal. App.-37

It is of no moment that after said attempted ratification of Mr. Passmore's appointment made on December 4th, as aforesaid, he presented another bond which the judge declined to act upon. It is not claimed that the first bond was defective and no reason appears why the approval of the second bond would have aided Mr. Passmore in any way. The judge may have assigned an erroneous reason for his action, but Mr. Passmore has not been prejudiced by the failure to approve the second bond.

The petition is denied and the proceedings dismissed.

Hart, J., and Finch, P. J., concurred.

[Civ. No. 4080. Second Appellate District, Division One.—January 25, 1923.]

E. E. WRIGHT, Receiver, etc., Appellant, v. SARAH A. PHILLIPS et al., Respondents.

[1] RECEIVERS — APPOINTMENT IN OTHER FORUM RIGHT TO SUE

COMITY. Receivers appointed under a jurisdiction other than that of the forum may be permitted to sue in a stranger state as a matter of comity only; but this privilege of comity will be extended wherever the rights of local or domestic creditors are not prejudiced.

[2] PLEADING-FRAUDULENT CONVEYANCE TO HUSBAND-ACTION TO SET ASIDE PARTIES.-In an action by a judgment creditor to set aside a conveyance made by a wife, the judgment debtor, to her husband during the pendency of the suit in which such judgment was obtained, the conveyance having been without consideration and with the fraudulent intent to prevent plaintiff from realizing upon the judgment that would be entered against said wife, the husband is a necessary party defendant, even though the court would not be authorized to give any judgment against his property.

APPEAL from a judgment of the Superior Court of San Diego County. C. N. Andrews, Judge. Reversed.

1. Privileges accorded foreign receivers by comity, notes, 5 Ann. Cas. 570; Ann. Cas. 1913D, 1296; Ann. Cas. 1916A, 97; 23 L. R. A. 54; 4 L. R. A. (N. S.) 824.

The facts are stated in the opinion of the court.

Thomas C. Ridgway and Ward, Ward & Ward for Appellant.

Sweet, Stearns & Forward for Respondents.

JAMES, J.-Separate demurrers of the defendants, inter posed to the complaint of the plaintiff, were sustained and the court refused leave to plaintiff to amend. The judgment of dismissal followed, from which plaintiff has taken his appeal.

Plaintiff alleged that on the twenty-sixth day of November, 1915, the Washington Motor Sales Company, a corporation, was by a judgment of the superior court of the state of Washington declared to be insolvent, and that an order was made appointing plaintiff as receiver and that he duly qualified and has ever since been acting as such. The averment next appears that the receiver duly obtained leave to bring this action from the court appointing him. It was alleged that the defendants were husband and wife; that on or about the third day of April, 1918, defendant Sarah A. Phillips was indebted to the corporation mentioned on account of a stock subscription in the sum of five thousand dollars; that on the 3d of April, 1918, plaintiff commenced an action in the superior court of the county of San Diego, state of California, against the said Sarah A. Phillips (who was at that time Sarah A. Donovan), which action was based upon the stock subscription contract, and that on the 29th of March, 1919, a judgment was in said case made, given, and entered in favor of the plaintiff and against said defendant. It was then alleged that on or about the 4th of June, 1918, after the suit last mentioned had been commenced, and "while defendant Sarah A. Donovan knew of the pendency of said action, and after she had been served with summons in said action," she by deed "attempted to convey" certain described real property to her husband, W. Sinclair Phillips. It was alleged that said conveyance was made without consideration and with intent to prevent plaintiff from levying upon the real property to satisfy the judgment which would be entered in the suit before mentioned, and that by the transferring of said property said Sarah A. Phillips became.

insolvent and that she has not since possessed any property which would not be exempt from execution. By the prayer plaintiff requested a decree setting aside the conveyance aforesaid described.

The main ground of the demurrers was that the plaintiff lacked the capacity to sue in this state as receiver, and we must infer that the trial judge reached a conclusion favorable to the defendants on that issue of law. The proposition. that a receiver appointed by a court of a particular state can have no authority to exercise his powers beyond the limits of the jurisdiction of the court appointing him, appears plainly enough from the bare statement of the question. [1] Receivers appointed under a jurisdiction other than that of the forum may be permitted to sue in a stranger state as a matter of comity only. That this privilege of comity will be extended, wherever the rights of local or domestic creditors are not prejudiced, is now the general rule in the United States, notwithstanding that earlier decisions, notably that of Booth v. Clark, 17 How. 322 [15 L. Ed. 184, see, also, Rose's U. S. Notes] tended in their holding the other way. (See High on Receivers, 4th ed., sec. 47; Smith on Receivership, 2d ed., p. 165; 23 R. C. L., p. 142; 5 Ann. Cas., p. 570.) Each state, of course, establishes its own policy on the subject. The policy of this state conforms to the generally recognized rule under which the plaintiff properly claims the privilege of maintaining his action. (Iowa and California Land Co. v. Hoag et al., 132 Cal. 627 [64 Pac. 1073].) In other California cases, such as Lackmann v. Supreme Council etc. et al., 142 Cal. 22 [75 Pac. 583], where persons, claiming in a representative capacity under appointments made in other states, were denied the right to become suitors in the courts of Cailfornia. it will be found that there were local creditors whose interests were to be first protected. If, at any later stage in the course of this action, it should appear that there are creditors within the state of California whose rights would be prejudiced by allowing the receiver to succeed, the court upon so finding would refuse to award the plaintiff any relief.

Being clear in our minds that the rule of comity recognized by the courts of California requires that the plaintiff be admitted here as a proper party plaintiff, the second contention of appellant need not be given extended considera

tion. The case of Lewis v. Adams, 70 Cal. 403 [59 Am. Rep. 423, 11 Pac. 833], is cited by the latter to the point where a debt owing to an estate is reduced to judgment by an administrator, the judgment may be sued on even in another state by the administrator in his own name, and that any description of his representative capacity appearing in the complaint may be treated as surplusage. Under that authority it would appear that the judgment already obtained in this state as pleaded (which judgment on the allegations made in the complaint is attended by every presumption as to its regularity and validity), could be sued upon by the plaintiff in his own name. However, this is a separate action, not directly on the judgment, although in aid of its satisfaction, and we leave the question open as to whether the authority cited is applicable in such a situation.

[2] It is next argued that as to the husband the action should be dismissed because plaintiff in no event could have a judgment against that defendant's property. The court would not be authorized under the allegations of the complaint to give any judgment against the property of the husband. Being an alleged recipient of property transferred to him by the wife, without consideration, for the alleged fraudulent purposes, he would be a necessary party to the action.

The judgment is reversed, with direction to the superior court to overrule the demurrers of the defendants as interposed to plaintiff's complaint.

Conrey, P. J., and Houser, J., concurred.

[Civ. No. 4026. Second Appellate District, Division Two.—January 25, 1923.]

A. AROCENA, Respondent, v. EDWARD A. SAWYER, Appellant.

[1] PARTNERSHIP-DISSOLUTION-ACTION AGAINST SURVIVOR-PARTIESPLEADING. In actions upon claims against a partnership the surviving partner may be sued alone, without joining the executors or administrators of the deceased partner or alleging the presentation of any claim against his estate.