McConaghy v. McConaghy

FINLEY, J. pro tem.

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This is an appeal from an order directing the sale of property.

The parties were formerly husband and wife but since divorced. In an interlocutory judgment directing sale of the subject property, a trailer park, they were found to be tenants in common, each owning an undivided one-half interest. As a part of its decree the court appointed a receiver to take charge of and to manage and operate the trailer park, to improve it to the point where it would comply with the Municipal Code of the City of San Diego and as referee to sell the same at private sale for the best price and on the best terms available. The decree further directed partial distribution of the proceeds of sale but reserved the right to determine the amount of waste, apparently caused by appellant Robert McConaghy, before dividing the residue between the parties.

The receiver offered the property for sale on the open market over a period of six months prior to October 28, 1963. With the exception of the offer which precipitated the order appealed from, no bona fide offers to purchase the property were received. The subject offer was made contingent upon

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the closing of escrow and delivery of possession of the property by December 2, 1963. On October 29, 1963, this offer was submitted to the parties and approved by respondent. Appellant although apparently agreeing that it was a good offer withheld approval pending a determination by the trial court of damages to be assessed against him for the waste.

On October 30, 1963, the receiver filed with the court his notice of motion for order directing sale of property, together with declarations in support thereof, whereupon the court granted an ex parte order shortening notice to two days before the time set for hearing of the motion which was noticed for November 4, 1963. Copies of the notice of motion, declarations and order shortening time were served on appellant on October 31,1963.

On November 4, 1963, the hearing commenced, appellant filed a declaration in opposition to the receiver’s motion alleging that he had had insufficient time to prepare his opposition to the motion, the testimony of a witness produced by appellant was taken and the hearing then recessed to November 5. The court was unable to hear the matter at that time and it was further recessed to November 6, concluded, and the order directing sale was made and entered on November 8, 1963.