Greenburg v. Superior Court

NOURSE, J.

Petitioners are joint defendants in an action pending in the respondent court in which Dora Adelstein is plaintiff. That action is one in unlawful detainer wherein the plaintiff, as owner of certain real property, sought the forfeiture and cancellation of her lease to said premises against the defendants, the petitioners herein, as lessees of said property. Judgment went for the defendants and the plaintiff in due time filed and perfected her appeal which is now pending in this court. Thereafter the plaintiff made a motion before said court requesting that the court order said defendants to deposit in court, or in bank, all moneys then due or thereafter to become due from said defendants as rent for said premises under the lease which was the subject matter of the litigation. Said motion was granted by respondent court, and pursuant thereto an order was entered on November 5, 1924, commanding said defendants to pay said rentals to E. M. Levy, who was therein designated and appointed receiver for the purpose of receiving and collecting said funds. Said order particularly commanded the defendants to pay to said receiver the sum of $2,750, being rental due for said premises from the first day of February, 1924, to the thirtieth day of November, 1924, and thereafter the sum of $275 monthly, this being the rental stipulated in the lease. The defendants refused to abide by this order but offered to pay the rentals (which are admitted to be due and payable) to the plaintiff alone, but on the condition that she would give them a receipt for payment under the lease. This the plaintiff refused to do because she felt that such a receipt would be an acknowledgment from her that the lease was

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in all respects in full force and effect and that this would jeopardize her position on the appeal from the judgment.

It is the enforcement of this order which the petitioners séek to restrain in this proceeding. The petition is framed on the theory that the respondent court was without jurisdiction to appoint a receiver or to compel the impounding of the rentals after the plaintiff’s appeal was perfected. The facts stated are not controverted and are taken from the petition for the writ and from respondents’ answer thereto. The petitioners seek to confine the hearing to the single issue of want of jurisdiction to make the order, but the respondents go further and insist that the writ should not issue because the petitioners had an adequate remedy by appeal from the order.