Sibert v. Shaver

MOORE, P. J.

This appeal is from the order appointing a receiver. The original action was (a) to enforce (1) the rescission of an assignment by respondents of their interest in a patent and (2) an accounting to Mrs. Sibert as administratrix of the affairs of a partnership between appellant and decedent and (b) for a receiver. The facts are fully set forth in the decision of this court in action No. 18771. (111 Cal.App.2d 833 [245 P.2d 514].) By the judgment thereby affirmed, the court decreed (1) the existence of a partnership, (2) the rescission of the assignment of decedent’s interest in the patent on a potato slieer, (3) a settlement of the partnership ■ affairs and (4) accounting to the estate of decedent under the supervision of the probate court for the interest of decedent in the partnership and in all profits collected by appellant from the business he conducted for and on behalf of the S & S Specialty Company. Not having received any accounting in probate and none appearing likely, respondents by due proceedings caused the court below to make and enter its order appointing a receiver to “take immediate possession of and safely keep until the further order of this court, all of the business, books,

[21]

records, property and assets of the partnership S & S Specialty Co. . . . and to collect and receive . . . moneys due to or on account of the said partnership business and to take possession of all the stock in trade, effects, records and property of every nature and kind belonging to the said business, with power to manage and operate the said business and to do whatever may be necessary and proper to maintain and preserve the same pending the appeal herein.”

Appellant bases his demand for reversal of the order on the theory that a custodian for the books would have protected -respondents and that a receivership was not necessary for that purpose. He argues that the allegations of the affidavit for a receiver, with one exception, are conclusions and that the latter cannot form the basis for the appointment, citing

McCaslin

v.

Kenney,

100 Cal.App.2d 87 [223 P.2d 94]. However, the affidavit that appellant has made statements that he would “personally spend the entire proceeds from said partnership business before he would pay either of plaintiffs a nickel; that he would go bankrupt before he would account to them for anything and that he would never turn any of the books of said partnership over to anyone,” was found to be true.