Davila v. Heath

CHIPMAN, P. J.

This is an action in which a partnership relation is averred in the complaint and an accounting is prayed for. Upon the filing of the complaint the court made and entered its order,

ex parte,

appointing a receiver “upon giving a bond . . . for the faithful performance of his duties as such receiver and upon taking his oath of office in the manner required by law.” The complaint was filed August 27, 1908; the order appointing the receiver was made August 31, 1908, and on September 2, 1908, the receiver’s bond was approved and filed and his oath of office duly taken. It appears from the clerk’s certificate “that no other or further bond or undertaking was ever filed by the receiver in said action or on his behalf, and that no order was ever made by said court fixing the amount of, or requiring from said applicant or plaintiff an undertaking, and that no undertaking was ever filed by or on behalf of said applicant, and that no notice of the hearing of the application for a receiver is on file in this office.” Defendant Heath appeals from the order.

Section 566 of the Code of Civil Procedure, among other things, provides as follows: “If a receiver is appointed upon an

ex parte

application, the court, before making the order, must require from the'applicant an undertaking, with sufficient sureties, in an amount to be fixed by the court, to the

[372]

effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver and the entry upon his docket, in case such applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause; and the court may, in its discretion, at any time after said appointment, require an additional undertaking. ’ ’ This section of the code, as it then stood, was amended in 1907 (Stats. 1907, p. 710), and the word “may” was changed to “must,” so that the statute now declares that if a receiver is appointed upon an

ex parte

application, “the court, before making the order,