Schroeder v. Superior Court

TYLER, P. J.

Petition for writ of prohibition. It appears therefrom that on July 31, 1924, there was filed in the Superior Court in and for the county of Alameda a eom

[689]

plaint entitled

Harry Brown

v.

Dorothy Schroeder and Herman Christ, petitioners herein.

The action was one for the dissolution of a partnership and an accounting. On August 7th following both defendants filed their answer thereto. The cause came on regularly for trial before respondent Honorable James G-. Quinn, as Judge of said Superior Court, and thereafter on the twenty-fifth day of February, 1925, the said court made and filed its findings of fact and judgment therein.

The findings, among other things, recited “that the appointment of a receiver is not necessary.” Notwithstanding this finding the judgment recited that an accounting was necessary and it ordered “that John Meillette, be and he is hereby appointed a receiver, to take and hold possession of the partnership property pending the accounting and until the partnership business is wound up on dissolution, with power to liquidate and dispose of said business under the order and direction of the court and to render an accounting thereof, on giving a bond in the sum of $1,000.00.”

Pursuant to these terms of the judgment Meillette, on the same day the judgment was rendered, gave and filed his bond and oath and was duly appointed receiver. He immediately demanded of the defendants possession of the property and his demand was refused. He thereupon prayed for an order of the court directing the defendants to deliver the same. The order was granted and they were directed to turn over the property to the receiver or show cause why they should not be punished for contempt in failing so to do.

On February 26, 1925, the day following, both defendants served and filed their notices of appeal from the judgment, and on February 28th following they likewise filed and served their notices of intention to move for a new trial. These motions were denied.