Van Alen v. Superior Court

California Court of Appeal

Van Alen v. Superior Court

174 P. 672, 37 Cal. App. 696, 1918 Cal. App. LEXIS 366

CourtCalifornia Court of Appeal

DecidedJune 28, 1918

DocketCiv. No. 2696.

StatusPublished

Cited by4 cases

This text of 174 P. 672 (Van Alen v. Superior Court) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Van Alen v. Superior Court, 174 P. 672, 37 Cal. App. 696, 1918 Cal. App. LEXIS 366 (Cal. Ct. App. 1918).

Pincite

Opinion

WORKS, J., pro tem.

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 appli *697 cation 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 Pac. 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.

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WORKS, J., pro tem.

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 appli *697 cation 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 Pac. 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.

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174 P. 672, 37 Cal. App. 696, 1918 Cal. App. LEXIS 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-alen-v-superior-court-calctapp-1918.

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