Hibernia Savings & Loan Society v. Ellis Estate Co.

MILLER, J.,

pro

tem.

This is an appeal from an order revoking an order appointing a receiver. The action was for the foreclosure of a mortgage on a piece of business property in the city of Marysville. On plaintiff’s

ex parte

application a receiver was appointed, who duly qualified and took control of the property covered by the mortgage involved in the action. Defendant, The Ellis Estate Company, occupied a part of the property, and the remainder was rented for $705 a month. In the affidavit forming the basis of the order appointing the receiver, it is alleged on information and belief: “That the mortgaged property was of a value less than the amount secured by the mortgage.” The defendant moved for an order vacating the order appointing the receiver, and on the hearing of that motion defendants produced a number of witnesses who testified that the mortgaged property was of a value in excess of $100,000, and counsel stipulated that there were present in court two witnesses called on behalf of defendants, namely, A. H. Gorwood and A. L. Galligan, both duly licensed real estate brokers in the city of Marysville, who were ready to, and, if called, would testify that the property in question was of a value in excess of $100,000. Several of the wit

[410]

nesses who testified for defendant were, on cross-examination asked the following question: “Q. Would the amount of income be regarded by you as a proper element in estimating the value of said property?” The question was objected to on the ground that it was incompetent, irrelevant and immaterial. The objection was sustained.

Likewise, on cross-examination, the following question was asked: “Q. Did you take into consideration, in arriving at the value of said property, the income therefrom?” To that question objection was made on the ground that it was incompetent, irrelevant and immaterial. The objection was sustained.

Each of these questions was proper on cross-examination, and the objection thereto should have been overruled. However, we do not think that the ruling constituted reversible error in view of the other testimony in the case that is free from objection and is sufficient, in itself, to amply support the order appealed from, even if the testimony of the witnesses who were being cross-examined when these questions were propounded had been weakened by the cross-examination, or was entirely disregarded.