Stoff v. Erken, 156 P. 1033

Stoff v. Erken

156 P. 1033 | Cal. | 1916

The defendant in this case appeals from an order appointing a receiver.

The receiver was appointed by an ex parte order in an action for the foreclosure of a mortgage. Section 566 of the Code of Civil Procedure provides that where a receiver is appointed exparte "the court, before making the order, must require from the applicant an undertaking," in an amount to be fixed by the court "to the effect that the applicant will pay to the defendant all damages" sustained by defendant if the applicant shall have wrongfully procured the order. The record shows that this undertaking was not required as provided by that section. The only undertaking required by the order appointing the receiver was a *482 bond to be filed by the receiver, as required by section 567 of the Code of Civil Procedure. The order was erroneous because of the failure to exact any undertaking from the applicant before making it.

The applicant, after the filing of the transcript, procured from the district court of appeal, to which court the appeal was erroneously taken, an order directing the clerk of the superior court to file a certified copy of an undertaking on file in the superior court, which the appellant claims was filed in compliance with section 566 aforesaid. The copy was accordingly filed in this court. It appears to be in the form required by section 566 This does not cure the defect even if we could consider it. The record still fails to show that the undertaking was required by the court below, or that the amount thereof was fixed by the court as the section provides. But we cannot consider this bond at all. The bill of exceptions declares that the proceedings therein contained constitute all of the proceedings had on the appointment of the receiver. It does not contain this undertaking, nor any order referring to or providing for it or fixing its amount. No proceeding was had to correct the bill of exceptions and the copy of the undertaking cannot be considered a part of the record on appeal.

The order is reversed.

Sloss, J., and Lawlor, J., concurred.