Mollis v. Jiffy-Stitcher Co.

DORAN, J.

This is an appeal from an order appointing receiver to take possession of a liquor license belonging to the judgment-debtor Mildred Lucey and to sell the same to satisfy a judgment which has become final.

[237]

It is contended on appeal, “That a receiver could not be appointed to take into his possession a liquor license standing in the name of the judgment debtor, and the court exceeded its jurisdiction in so appointing a receiver for that purpose” and that, “The appointment of a receiver is not entirely uncontrolled, and must be made only with great caution and circumspection, and in this case amounts to an abuse of discretion.”

Appellant argues that the “Provisions for the transfer of liquor licenses are contained in Sections 7 and 7.2 of Deering’s California General Laws, Act 3796.

“Section 7 of Deering’s Act 3796 sets forth under the heading of Transfers, as follows:

“ ‘Each license issued under this act is separate and distinct, shall be transferrable from one person to another upon approval by the Board and the payment of a transfer fee of $10.00, and upon such conditions as the Board shall prescribe . . . ; provided, that the privilege of applying for a transfer of a license shall be exercised by the surviving partner of a deceased licensee, or by the executor, administrator or guardian of the estate of a licensee, or, in the event that a deceased licensee leaves no estate to be administered, by the surviving spouse of the deceased licensee, and may be exercised by a

trustee of the bankrupt estate of a licensee,

or by an assignee for the benefit of the creditors of a licensee with the consent of the assignor.’

“Section 7.2 of the same act, under the heading, ‘Applicability of section’, sets forth the same provisions, and therein uses the word, ‘receiver.’

“ It is respectfully submitted that Section 7 is the governing section of these two, and when the Legislature used the phraseology, ‘and may be exercised by a trustee of the bankrupt estate of a licensee,’ they, the Legislature, by not including a receiver, limited the power of transfer to a trustee in bankruptcy, or by a receiver in bankruptcy as set forth by Section 7.2 of the act.”