Elson v. Nyhan

WARD, J.

This is an appeal from two orders; one discharging an order to show cause why a receiver after judgment should not be appointed, and the other denying a petition for such appointment and finally discharging the first mentioned order.

Certain questions presented may be passed without decision, namely, are taxicab permits or licenses subject to creditors’ claims; does the law authorize the appointment of a receiver in aid of execution where the judgment sought to be enforced is an ordinary money judgment, and does an appeal lie from an order refusing to appoint a receiver? This appeal may be decided upon the sole ground of the court’s discretionary power to deny the petition for the appointment of a receiver.

The facts of the case may be summarized as follows: Appellant’s assignor recovered a money judgment in a personal injury action against Mrs. James Nyhan, James Nyhan and Robert Wetherill, following which, execution having been returned unsatisfied, appellant assignee instituted proceedings supplemental to the execution and filed his petition for the appointment of a receiver in aid thereof. The trial court thereupon issued a temporary restraining order and order to show cause why a receiver should not be appointed. Following a hearing thereon the court made and entered its order and decision discharging the aforesaid order to show cause and permitting amendment to the petition for appointment of receiver by the addition of a paragraph alleging James Nyhan and one C. J. Galena to be co-partners doing business under a fictitious name. After hearing, an order was made denying the appointment of a receiver and again discharging the order to show cause. The appeal is from said orders as above specified.

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From the record it appears that the only purpose in seeking the appointment of a receiver was to sell and transfer five licenses issued pursuant to the provisions of the Police Code of the City and County of San Francisco to James Nyhan for the operation of motor vehicles for hire.

The petition for the appointment of a receiver sets forth the recovery of the judgment by Doris Elson, its finality, the assignment thereof, the failure of the defendants in the negligence action to apply their property in satisfaction of the judgment, the issuance of a writ of execution and the return thereon and that Mr. and Mrs. Nyhan are the owners of five licenses permitting operation of vehicles for hire. The return to the order to show cause recites that adequate public liability insurance was carried to cover the judgment in the personal injury action; that the appellant assignee, who purchased the judgment for the sum of $1500, is an official of a rival taxicab company and is not proceeding in good faith about the matters set forth in the petition.