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Van Alen v. Superior Court

37 Cal. App. 696 Court Second Appellate District. Decision date 1918-06-28 Docket Civ. No. 2696 English

Delivered by WORKS, J., pro tem.

Contents

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p. 696
[Civ. No. 2696.
Second Appellate District.
June 28, 1918.]
EGBERT VAN ALEN et al., Petitioners, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

Headnote

Receiver—Appointment upon Ex Parte Application—Failure to Require Bond—Void Order.—An order appointing a receiver in an action for the foreclosure of a mortgage without requiring the undertaking provided by section 566 of the Code of Civil Procedure is void, notwithstanding the default of the defendants, where there were no allegations in the complaint upon which a receiver could have been appointed, and no notice given the defendants of the application for the appointment.
APPLICATION for a Writ of Prohibition originally made to the District Court of Appeal for the Second Appellate District to restrain the Superior Court from punishing the petitioners for contempt of court. Grant Jackson, Judge.
The facts are stated in the opinion of the court.
Charles L. Evans, for Petitioners.
D. H. Parke, for Respondents.

In a certain action in the superior court, brought for the foreclosure of a mortgage, in which the petitioners here were defendants, an order was made, after decree of foreclosure, appointing the respondent Kinney a receiver to take possession of the property mentioned in the decree. The receiver endeavored to take possession but the petitioners refused to surrender it, and were cited to show cause in the superior court why they should not be punished for contempt. They are here on a petition for a writ of prohibition preventing the respondent court from so punishing them.

It is contended by the petitioners that the order appointing the receiver is void on various grounds, but one only of them need be considered. The petitioners defaulted, as defendants in the foreclosure action, but there were no allegations in the complaint upon which a receiver could have been appointed. No notice was given the petitioners of the appli

p. 697
cation for the appointment of a receiver. Therefore, considering the form of the complaint, and notwithstanding the default of the petitioners, the application was an ex parte one. Section 566 of the.Code of Civil Procedure provides: “If a receiver is appointed upon an ex parte application, the court, before making the order, must require from the applicant an undertaking, ... to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver. ...” In the present instance no such bond was required or given either before or after the appointment of the receiver. The order was void. (Stoff v. Erken, 172 Cal. 481 , [ 156 Pac. 1033 ].)

A peremptory writ of prohibition will issue restraining the respondent court from punishing the petitioners for contempt.

Conrey, P. J., and James, J., concurred.

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