Burham v. San Francisco Fuse Manufacturing Co. , 76 Cal. 26 ( 1888 )

McKinstry, J.

—The order of the 2d of June directing a sale of the delinquent stock of plaintiff was irregular, and any sale upon thirteen days’ notice would have given to the purchaser no title which he could assert against the plaintiff, should the latter tender him the amount of the assessment, and bring his action to recover the stock within six months. (Civ. Code, sec. 347.) But the assessment was valid (Civ. Code, sec. 346), and it was the duty of the plaintiff to pay it. A court of equity properly refused to entertain his application for an injunction to prohibit the sale in the absence of an allegation that he had done, or offered to do, equity. True, if he paid there would be no sale, and he would not need the extraordinary writ; but the jurisdiction of equity does not depend upon the convenience of a party. The statutory remedy is plain, and it was intended by the legislature that this shall be the only remedy in case a valid assessment is not paid.

It may be said the rule thus laid down will encourage sales without the notice which the statute declares to be necessary, and proceedings of the character which are declared to be void by section 346. But the context shows the sense in which the word “ void ” is employed. It is intended thereby to declare that the irregular proceedings shall be inoperative to confer an indefeasible title to the stock as against the owner, who shall make tender of the assessment, and bring suit for its recovery within the time prescribed in section 347. As the complaint did not state a cause of action, the suit was properly dismissed.

Judgment and order affirmed.

Seabls, C. J., and Patebson, J., concurred.