Conklin v. Superior Court

CURTIS, J.

Petition for a writ of mandate directed to the Superior Court of the County of Los Angeles' commanding said court to appoint a receiver to take charge of the community property belonging to petitioner and her husband in an action for divorce (No. D117014) brought by petitioner against her husband and for the division of said community property. In said divorce action, upon the filing of the complaint, the court made an order

ex parte

appointing a receiver to take charge of said community property. The court thereafter vacated said order, and at a still later date the plaintiff made a second application for the appointment of such a receiver for the same purposes for which' such an officer had been originally appointed, and upon the same being presented to the respondent court, the judge thereof refused to entertain the same on the ground that said court had no jurisdiction to appoint a receiver in eases of that character. This proceeding was thereupon commenced in this court for the purpose of obtaining a writ of mandate directed to said trial court commanding said court to appoint a receiver as prayed for by petitioner in her said application. It does not appear that the defendant in said divorce action had ever appeared" therein, nor was any notice of said application ever made upon defendant. It is alleged in the petition herein that an order for the publication of summons was made in said divorce action on the ground that the defendant “has departed from the state of California, conceals himself to avoid service of summons, and cannot after due diligence be found within this state”, and that publication of service was completed prior to the date of the making of said

[603]

application for the appointment of a receiver. This court issued an alternative writ directed to the trial court commanding that court to appoint a receiver in said action as prayed for by petitioner, or to show cause before this court why it had not done so. The respondent court has appeared, and as a return to said writ has filed a general demurrer to said petition.

It is alleged in the petition herein that the respondent judge refused to make the order appointing a receiver on the ground that he had no jurisdiction to make such order. The general demurrer admits this as well as all other allegations of the petition. We have just held in the case of