Sac. No. 444 | Cal. | Jul 27, 1898
Appeals by defendants from a judgment and a subsequent order appointing a receiver. The main facts in the-case are stated in the opinion rendered on the plaintiff’s appeal from the order' granting a new trial. The judgment included a provision that plaintiff recover from, the defendant Bank of Madera the sum of seventeen hundred and forty-five dollars, rents of the land in dispute, collected by said defendant from June 29, 1895, the date of the deeds made to it by Charles and Mary Dworack, to November 7, 1896, the date of the court’s decision in the case. On February 15, 1897, the Bank of Madera and certain other defendants appealed from the judgment, and gave a bond in double the amount of the pecuniary recovery to stay execution thereof pending the appeal. June 1,. 1897, the court made an order granting a new trial on the motion of said defendants, and the plaintiff appealed therefrom on July 2d following. August 10, 1897, on the application of plaintiff the court appointed a receiver “to take and keep possession of the real property described in the judgment .... and to receive and collect the rents, issues, and profits thereof, from data of said judgment until the further order of the court.”
This order was erroneous. We have seen in affirming the order granting a new trial that the ultimate rights of the plaintiff' are, if anything, those of a mortgagee; these do not include the-right to possess the land (Civ. Code, sec. 2927), nor to have possession thereof delivered to a receiver (Guy v. Ide, 6 Cal. 99" court="Cal." date_filed="1856-07-01" href="https://app.midpage.ai/document/guy-v-ide-5433070?utm_source=webapp" opinion_id="5433070">6 Cal. 99; 65 Am. Dec. 490), except, by statute now, in an action to foreclose the mortgage. (Code Civ. Proc., sec. 564, subd. 2.) Plaintiff’s action is not prosecuted for the purpose of foreclosure.. The complaint contains no allegation even that the money loaned to Mary Dworack has not been repaid. The averments of the complaint, in so far as they furnish a basis for the recovery of' the rents and profits of the land, are meager; but if they may be regarded sufficient for that purpose, still the appointment of a receiver of the rents was not proper; it was not made in order to carry the judgment into effect, nor could it have been, since
As the order granting a new trial on defendants’ motion has been affirmed here, the judgment of course falls and the appeal taken therefrom should be dismissed; the order appointing a receiver should be reversed, defendants to recover costs on both appeals.
Belcher, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the appeal from the judgment is dismissed; the order appointing a receiver is reversed; defendants to recover costs on both appeals.
Garoutte, J., Van Fleet, J., Harrison, J.