The plaintiff in error seeks by this proceeding to reverse an order of the district court of Jackson county denying his motion to discharge certain real estate from the custody of a receiver in the case.
He first assigns for error that the district court refused to hear testimony upon the motion, and refused to consider any question except the jurisdiction of the court to make the appointment in the first instance; second, that the court erred in denying his motion to release that part of the real estate which was not the subject-matter of the suit; and third, in denying the motion to set aside the original order appointing a receiver, for want of jurisdiction. There are two other formal assignments, but they cover the same ground.
The main action, to which this proceeding is auxiliary, was in the nature of ejectment by Josie Webb, as a tenant in common with John S. Branner, to recover an undivided one-fourth interest in certain real estate in the city of Topeka, the possession of which was in Branner, he denying the cotenancy, and his conduct amounting to an exclusion of the plaintiff as cotenant. The appointment of a receiver was made in the first instance without notice to the defendant Branner, but by his conduct since he has acquiesced in the ex parts appointment so far as to preclude him from questioning the appointment for that reason. The order appointing the receiver, however, directed him to take, possession 'of considerable other property, as well as the entire property in controversy, upon which the plaintiff had levied an execution, and which had been sold to pay the judgment for rents rendered in favor
The primary question in the case under this proceeding in error is, Had the district judge jurisdiction under the statute to appoint the receiver for property other than that in controversy in the case, merely because an execution had been issued and levied thereon and the land sold thereunder ? It was not in any sense a supplementary proceeding in aid of execution, under the statute. The power to appoint a receiver in actions under the code is clearly defined and restricted by the provisions of the code, and under none of them had the district court jurisdiction to appoint a receiver, under the.circumstances and conditions of this case. The power to do so is not conferred by law. The supposed exigency making it necessary to appoint a receiver was that some time would elapse before a confirmation of the sale could be had; that rents had accrued before the sale and were accruing after the sale, and the tenants did not know to whom to pay them. After the sale was set aside no such exigency existed. Josie Webb could make no claim to other property of the defendant, except as purchaser under her own writ. So, whether the rent was paid to Branner or another person, or at all, did not concern her. At the time this motion was made and heard the sale had been set aside, and even though the power existed in the district court to appoint a receiver, the reason therefor had ceased to exist, and the court ought to have sustained the motion upon that
Under the circumstances, the- court had undoubted authority to appoint a receiver to collect the rents and profits of the entire property in controversy — not only the interest of the plaintiff, from which she was excluded, but the interest of the defendant as well. But at the time this motion was made to discharge the property from the custody of the receiver, the plaintiff, Josie Webb, had been put in possession of her interest in the property, whereby she was enabled to collect the rents and profits therefor herself without the aid of a receiver. The judgment had been carried into effect, except that part of it which adjudged the defendant to pay money for rents collected theretofore— a mere personal judgment against Branner ; so there existed at the time the motion was made - and heard no reason for continuing the property in controversy— that is, the interest of the defendant Branner — in the custody of a receiver. The interest of the plaintiff had been theretofore, upon her application, discharged from the custody of the receiver.
There are several objections made by the defendant in error to a review of the case by this court. The first is, that the record discloses that more than $2000 is in controversy, which would be affected by the order discharging the' property from the custody of the receiver. We are of the opinion that the record does not sustain this contention. The second objection is that this proceeding in error was not begun within the time allowed by law. The basis of this contention is that there had been a prior motion made to set aside the order appointing the receiver and to discharge the property, upon the ground that the court had no jurisdiction to make the appointment. To this