Van Alen v. Superior Court

174 P. 672 | Cal. Ct. App. | 1918

In a certain action in the superior court, brought for the foreclosure of a mortgage, in which the petitioners here were defendants, an order was made, after decree of foreclosure, appointing the respondent Kinney a receiver to take possession of the property mentioned in the decree. The receiver endeavored to take possession but the petitioners refused to surrender it, and were cited to show cause in the superior court why they should not be punished for contempt. They are here on a petition for a writ of prohibition preventing the respondent court from so punishing them.

It is contended by the petitioners that the order appointing the receiver is void on various grounds, but one only of them need be considered. The petitioners defaulted as defendants in the foreclosure action, but there were no allegations in the complaint upon which a receiver could have been appointed. No notice was given the petitioners of the application for the appointment of a receiver. Therefore, considering the form of the complaint, and notwithstanding the default of the petitioners, the application was an ex parte one. Section 566 of the Code of Civil Procedure provides: "If a receiver is appointed upon an ex parte application, the court, before making the order, must require from the applicant an undertaking, . . . to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver. . . ." In the present instance no such bond was required or given either before or after the appointment of the receiver. The order was void. (Stoff v.Erken, 172 Cal. 481, [156 P. 1033].)

A peremptory writ of prohibition will issue restraining the respondent court from punishing the petitioners for contempt.

Conrey, P. J., and James, J., concurred.