Majority
p. 336[Civ. No. 10307. First Appellate District, Division Two. August 28, 1936.] MATTS WERNER SWEINS, Petitioner, v. THE SUPERIOR COURT OF MONTEREY COUNTY et al., Respondents.
Thacher, Jones & Casey for Petitioner.
H. W. Hutton for Respondents.
An alternative writ of prohibition was issued upon the petitioner’s application showing that, in an action foreclosing a chattel mortgage, the respondents made an ex parte order appointing a receiver without requiring the applicants for such order to give an undertaking.
Section 566 of the Code of Civil Procedure provides that: “If a receiver is appointed upon an ex parte application, the court, before making the order, must require from the applicant an undertaking ...”
The provisions of that section are mandatory (22 Cal. Jur., p. 468) and the order was therefore void. (Westphal v. Superior Court, 120 Cal. App. 263 , 264 [ 7 Pac. (2d) 711 ], where other authorities to the same effect are cited.)
Let a peremptory writ issue as prayed.
Cases cited
- Westphal v. Superior Court 120 Cal. App. 263 at 264 p. 336