Bibby v. Dieter

Receiver—Ex Parte Appointment—Bond not Required—Void Order. Under section 566 of the Code of Civil Procedure, if a receiver is appointed under an ex parte application, the court, before making the appointment, must require from the receiver the undertaking specified therein; and where a receiver was appointed ex parte without first requiring any undertaking, the court had no jurisdiction to appoint a receiver, and its order of appointment is null and void.

Id.—Basis op Determination—Existing Pacts.—The order of appointment must be viewed in the light of the facts and circumstances as they existed at the time. The validity of the order must be determined by the proceedings upon which it is based, and it cannot be validated by any subsequent proceeding.

Id.—Jurisdiction to Make Appointment Assailable Collaterally— Action op Claim and Delivery.—The jurisdiction of the court to appoint the receiver may be questioned collaterally in any action in which the appointment or the alleged receiver’s title is involved. In an action of claim and delivery against an alleged receiver, it may be shown that he wrongfully seized possession under a void order of appointment.

Id.—Vacation op Void Order—Receiver Deprived of Semblance of Authority—Justification Disallowed—Authority to Sue not Required.—Where the court vacated the void order of appointment, the receiver was thereby deprived of any semblance of authority to retain the possession of property seized thereunder. He can neither justify under the void order, nor insist that authority must first have been granted before suing him in claim and delivery. He thereafter holds the property seized only in his individual capacity, and the true owner may reclaim the same.

Id.—Effect of Appeal from Judgment in Unlawful Detainer—Void. Order Appointing Receiver not Vitalized—Receiver not a Party.—An appeal from a judgment in unlawful detainer, in which a void order appointing a receiver had been made, to which the receiver was not a party, and was between other parties, though an order vacating the same was considered and declared effective, did not have the effect in any way to vitalize the void order, nor did the stay bond on appeal from such judgment have the effect to suspend the void order of appointment of the receiver, which was not appealed from.

Id.—Subsequent Orders Vacating Order and Discharging Receiver— Original Invalidity of Appointment Unaffected.—Subsequent orders vacating the original order appointing the receiver and discharging the receiver may be treated as immaterial, where the receiver attempts to justify his possession under the original void order appointing the receiver.

Id.—Action of Claim and Delivery—Justification Under Order of Appointment—Showing of Invalidity.—In the action of claim and delivery against one who had been appointed as a receiver, where he attempts to justify under his appointment, the plaintiff has the right to show its invalidity to sustain the action, and to overcome his right of possession.