Lent v. HC Morris Co.

NOURSE, P. J.

This is an appeal by defendant H. C. Morris Company from an

ex parte

order appointing a receiver.

Plaintiffs and defendant, as tenants in common, owned the Federal Realty building in Oakland, valued at about $400,000, and bringing in an income from rentals of about $2,000 per month. Plaintiffs’ half interest in the building was encumbered with a $55,000 trust deed. Morris Company had the control and management of the building. Plaintiffs sued for partition on a complaint filed January 20, 1936. The

ex parte

application for appointment of a receiver was granted the same day, and the order appointing the receiver was filed the following day. Seven days later Morris Company moved to vacate, set aside, and revoke the order of appointment and, upon denial of this motion after a full hearing, it appealed from the order of appointment.

Appellant’s points are argued under 12 main headings, attacking the propriety of the

ex parte

receivership, the jurisdiction of the court and the sufficiency of the showing upon which the order was made. Respondents urge that the appointment was a proper exercise of discretion by the court below. Respondents further urge that this appeal must now be decided against appellant because of its failure to show injury from the receivership. In connection with this latter contention, the following further facts, disclosed on the motion to dismiss the appeal herein, should be noted:

The main action for partition was tried in June, 1936. Pursuant to stipulation of the parties there was entered on February 11, 1937, an interlocutory decree and order declaring the respective rights in the property, that partition could not be made without great prejudice to the owners, and therefore ordering the property sold at public auction, and appointing a referee to conduct the sale. No appeal was taken from this decree, and it has become final for all purposes. Pursuant thereto the referee auctioned the property. It

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