Sly v. Superior Court

CRAIG, J.

Petitioner herein seeks a writ of prohibition restraining the superior court of Los Angeles County from discharging a receiver in an action wherein petitioner is plaintiff and William Abbott, John Gray, and Lena Abbott are defendants. The action was commenced for an accounting, and involved certain real estate transactions, contracts, and moneys, which were in dispute between the parties. One Charles R. Morfoot was appointed by the trial court to act as a referee to take evidence and report his findings to the court as a basis for final judgment; he was, at the same time, appointed receiver to take charge of all contracts, to collect the amounts due, and to pay the same to the plaintiff in settlement of such amount as an accounting should show to be due, with the usual powers of receivers, upon filing a bond in the usual form in the penal sum of ten thousand dollars, conditioned for the faithful discharge of his duties. The appointment was included in the terms of an order which also directed that the default of said defendants be entered for failure to answer the complaint. It was thereafter stipulated that the default be vacated and set aside, but that the receiver be continued in office. The lower court thereupon set aside such default and directed that the order appointing the receiver be continued in full force and effect during the pendency of the action, and that the receiver hold all sums of money received by him during his incumbency until the final determination of the action.

It does not appear that the referee heard evidence or made any report, but it does appear that thereafter, and on July 9, 1924, the referee-receiver was ordered to immediately return to various banks all purchase and sale contracts received by him, which they should hold as agents for the receiver, and collect all past due and future payments; that all moneys thereafter received should be held and disbursed upon the orders of the court, and not otherwise, but that

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“other than as herein specified, said order heretofore made appointing said receiver shall remain in full force and effect. ’ ’ A further order was made on September 13, 1924, directing payment to the record owners of twenty-one lots of certain moneys due them, and on the seventh day of October it was stipulated by the parties that any sums of money then due and payable to original owners under these contracts be paid by the receiver and the banks.