McCall v. McCall Brothers Co.

27 P.2d 648 | Cal. Ct. App. | 1933

Plaintiff brought this action for a dissolution of copartnership, for an accounting and for the appointment of a receiver. Upon the filing of the verified complaint the trial court made an ex parte order appointing a receiver. Defendant Thaddeus D. McCall appeals from said order.

[1] The sole contention made by appellant is that the trial court erred in making an ex parte order appointing a receiver as no showing was made that irreparable injury would result unless a receiver was so appointed. In our opinion this contention must be sustained. (A.G. Col Co. v. SuperiorCourt, 196 Cal. 604 [238 P. 926]; Fischer v. SuperiorCourt, 110 Cal. 129 [42 P. 561]; Tyler v. Park RidgeCountry Club, 103 Cal.App. 117 [284 P. 247]; Ryan v.Murphy, 39 Cal.App. 640 [179 P. 517]; Hobson v. PacificStates Mercantile Co. 5 Cal.App. 94 [89 P. 866].) InFischer v. Superior Court, supra, the Supreme Court said at page 138 of the opinion: "The general rule, no doubt, is that so harsh a measure as the appointment of a receiver to take property out of one's possession without trial will not be indulged in by a court without previous notice to the defendant. It would be unjustifiable, except where it clearly appeared that irreparable injury would be done during the few days necessary for a hearing on notice . . ." In Ryan v. Murphy, supra, at page 641, the court said: "It is obvious that the receiver in this case was appointed without formal notice. Such an appointment, under the established law of this state, cannot be legally made except upon a showing of great emergency." The allegations of the complaint in the present case were insufficient to show any "great emergency" or that any irreparable injury would be done during the few days necessary for a hearing on notice" of an application for the appointment of a receiver.

The ex parte order appointing the receiver is reversed.

Sturtevant, J., and Nourse, P.J., concurred.