109 P. 893 | Cal. Ct. App. | 1910
This is an action in which a partnership relation is averred in the complaint and an accounting is prayed for. Upon the filing of the complaint the court made and entered its order,ex parte, appointing a receiver "upon giving a bond . . . for the faithful performance of his duties as such receiver and upon taking his oath of office in the manner required by law." The complaint was filed August 27, 1908; the order appointing the receiver was made August 31, 1908, and on September 2, 1908, the receiver's bond was approved and filed and his oath of office duly taken. It appears from the clerk's certificate "that no other or further bond or undertaking was ever filed by the receiver in said action or on his behalf, and that no order was ever made by said court fixing the amount of, or requiring from said applicant or plaintiff an undertaking, and that no undertaking was ever filed by or on behalf of said applicant, and that no notice of the hearing of the application for a receiver is on file in this office." Defendant Heath appeals from the order.
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Plaintiff has moved to dismiss the appeal on the ground that defendant is not an aggrieved party. In support of his motion he has attached thereto a copy of defendant's answer and also the answer of intervenor, Berkeley Farm Creamery Company, the latter having been filed September 12, 1908, and the former September 17, 1908, and both some days after the receiver was appointed. The point made by plaintiff is that the sworn answer of defendant avers that the transactions complained of by plaintiff were with the intervenor, in which defendant was acting only as manager and agent of the creamery company and had no personal interest therein. We cannot assume the truthfulness of the averments either of the complaint or the answer. The issues there presented must be tried. Upon plaintiff's showing defendant is a necessary party to his action. So far as we can now know the trial *373
may disclose the facts to be as plaintiff avers. Appellant cites Amory v. Amory,
It would be strange, indeed, if, in endeavoring to escape the consequences of a possible judgment against him, the defendant makes averments inconsistent with or contradictory of the averments of the complaint, he thereby ceases to be an aggrieved party and deprives himself of the right of appeal. There is no merit in the point.
The order appointing the receiver was unauthorized, and is therefore reversed.
Burnett, J., and Hart, J., concurred.