Seccombe v. Dionne

California Court of Appeal Jan 18, 1935 No. Civ. 1231Published

Before: Allyn

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Holding. The court held that the trial court erred in settling the receiver's report as a final account and discharging the receiver and his surety, because the document filed failed to provide the necessary accounting of debits and credits required of a fiduciary.

Issues

Whether the document filed by the receiver constituted a sufficient final account to justify his discharge and the release of his surety.
Whether the receiver's failure to account for crops and proceeds under his control precluded the trial court from settling the account.

Disposition. reversed

Quotations verified verbatim against the opinion

“It follows that since the instrument filed as a final account cannot as a matter of law be considered as an account it was error to discharge the receiver and release the surety on his bond from further liability.”

“It is impossible, on the basis of the document filed as an account, for the court to determine the rights and obligations of the parties.”

ALLYN, J.,

pro

tem.

In an action for unlawful detainer brought in January, 1929, the respondent Sailer was, on motion of plaintiff and appellant, appointed receiver of certain real property with powers and duties prescribed as follows:

[733]

“That as such receiver he take immediate charge and possession of all of the real property described in the complaint on file herein pending the trial and final determination of this action; that he harvest and sell the remaining portion of the crop of cotton now standing and growing thereon; that he preserve and maintain said real property, including the wells and pumping plants thereon; that he cultivate and care for all of said real property, and that he harvest, sell and deliver all crops grown thereon and receive the rents, issues and profits of all said real property, and that he do any and all other things necessary and which are required or ordered by the Court.”

Sailer qualified as such receiver and the property involved was in his possession and under his control as receiver until April 28, 1931, when an order was made discharging it from his control. On March 10, 1932, he was ordered to show cause why he should not file a report and account of his receivership, and in response to this order filed a verified document termed an Account and Petition to be Discharged, in which he set up that after his qualification and appointment as a receiver he joined with plaintiff (appellant) in the execution of a cotton lease and crop waiver to one Eevia, as tenant for the 1929 season; that the entire 1929 crop was mortgaged to a finance'company; and that he, as receiver, “had nothing to do with the funds realized from the sale of said products and neither did he receive any funds for said purpose from said plaintiff or anyone else”; that he exercised general supervision over the cotton crop until July of 1929, when he was led to believe that he was discharged; that in 1931, as a matter of accommodation, he joined with the plaintiff in executing another cotton lease. The balance of his report and account deals exclusively with the matter of receiver’s fees and attorney’s fees. Exceptions were filed and upon a hearing thereof the trial court made its order settling the account and discharging the receiver and his surety.

Seccombe v. Dionne

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ALLYN, J.,

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