Reidy v. Young

NOURSE, P. J.

Plaintiff sued to foreclose a mortgage on real property. By an amended complaint Merchants National Trust and Savings Bank of Los Angeles was joined as a party defendant. This party filed a cross-complaint joining plaintiff and the original defendants as cross-defendants. The trial was had on the cross-complaint. The trust company had judgment for foreclosure of the mortgage which it held as collateral security for a loan to plaintiff Reidy. The latter had judgment for the amount due him after the trust company’s claim had been satisfied which was made payable out of the proceeds of the sale on foreclosure. The case was dismissed as to the defendant Young, the maker of the note which the mortgage secured. There was no deficiency judgment. The defendants Onnik Timourian and wife purchased the property subject to the mortgage prior to the institution of these proceedings. Against them the judgment awarded costs accruing subsequent to the filing of their answer to the cross-complaint. Upon the filing of

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the original complaint, and based upon its allegations, a receiver was appointed who took possession of the property and collected all rents and profits. Prior to the entry of judgment the defendants moved for the' discharge of the receiver on the grounds that the issues having been tried on the cross-complaint, the receiver’s appointment upon the original complaint which was held not to state a cause of action was no longer justified; and, the action having been dismissed as to the maker of the note, and hence no deficiency judgment being possible, the jurisdiction of the court to continue the receiver was exhausted. This motion was denied and judgment was entered upon the cross-complaint as indicated. In this judgment and decree the receiver was continued in possession of the property “until the judgment has been paid in full and until the further order of this Court . . . , That if the rents, profits and returns of said receivership exceed the costs of operation and administration that such sums as are now or

may hereafter

come into the possession of said receiver shall be first applied to the claim of the Merchants National Trust and Savings Bank of Los Angeles; secondly ...” During the course of the proceedings the trial court, upon motion of plaintiff Reidy, ordered the receiver to reimburse him for moneys advanced by him to the receiver for payment of taxes assessed to the property in suit. The defendants Timourian appealed from the latter order, from the order refusing to discharge the receiver and from the judgment and decree. These appeals were all made in one notice and are presented on the same typewrittn transcripts.