Jones v. Richardson

SHINN, J.,

pro tem.

Defendant Friend W. Richardson, as' Building and Loan Commissioner of the State of California, acting as liquidator of United Building and Loan Association, brought an action for specific performance of a trust deed upon real property improved with an apartment and store building owned by plaintiff. On June 17, 1932, by

ex parte

order, the superior court, upon application of the Commissioner, appointed a receiver who qualified, entered' into possession of the property and collected the rents therefrom. On June 23d, a motion to vacate the

ex parte

appointment

[659]

was denied and the appointment was confirmed. An appeal taken hy Harvey M. Jones, plaintiff herein, from that order was later dismissed on stipulation. The Commissioner acquired title to the property under trust deed sale September 19, 1932; the receiver was discharged October 19, 1932, and on March 27, 1933, counsel for the Commissioner filed an order with the clerk for the dismissal of the action. Notwithstanding the dismissal, the ease was noticed for trial on April 5, 1933, at which time the court ordered the action dismissed and gave judgment in favor of Harvey M. Jones for costs.

This action is brought against the defendant Richardson as Building and Loan Commissioner and against American Bonding Company of Baltimore, surety upon the Commissioner ’s official bond, to recover damages in the amount of the alleged rental value of the premises during the time the receiver was in possession. In addition to the foregoing facts, the complaint alleges that the receiver was appointed wrongfully and without sufficient cause. When the present action was brought to trial upon the complaint and the answers of the defendants, a motion was made by the defendants to exclude evidence upon the ground that the complaint failed to state a cause of action against either defendant. The court granted this motion and rendered judgment of dismissal of the action, from which plaintiff appeals.

The complaint is defective in several particulars. It was evidently drawn upon the theory that defendant Richardson and the surety upon his official bond were under the same liability as a principal and surety who give the indemnity bond required by statute upon the appointment of a receiver. Such is not the case. This is not an action brought upon an undertaking given upon the appointment of a receiver, required by section 566 of the Code of Civil Procedure, to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of the receiver, in case the appointment has been procured wrongfully, maliciously or without sufficient cause. In bringing the action and procuring the appointment of a receiver, defendant Richardson was acting in his official capacity in the exercise of powers conferred upon him as Commissioner by the Building and Loan Association Act (Deering’s Gen. Laws, 1931, p. 459, secs. 13.11 et seq.). No undertaking was given