Campbell v. Superior Court

WORKS, J.

Petitioners are defendants in a certain action pending in. respondent court, in which one Rose A. Parry is plaintiff. The action was commenced to compel the specific performance of an alleged contract whereby petitioners agreed to exchange certain of their real property for real property of Rose A. Parry. The action was tried by respondent court, findings and judgment were ordered for plaintiff, and her counsel were directed to prepare them.

[729]

The signing of the findings and judgment was delayed for some months and in the interim the plaintiff in the action served upon petitioners, as defendants therein, a notice of motion for the appointment of a receiver “to handle the properties affected by the . . . action during the pendency of said matter and the appeal that has been threatened ; said receiver to do such things as may be necessary under such receivership.” On the day for which the motion was noticed a hearing was had pursuant to the notice and at its conclusion respondent court entered its minute order granting the motion. Thereafter and on the same day the findings and judgment in the action were signed and the judgment was thereafter duly entered. Petitioner then presented to this court his petition for an alternative writ of prohibition restraining respondents from proceeding with the appointment of a receiver pursuant to the order made by respondent court, and an alternative writ was granted. The question now before us is whether a peremptory writ shall issue.

Upon demurrer to the petition respondents contend that this court cannot issue the writ for the reason that petitioners will have a plain, speedy, and adequate remedy by appeal from any order made by respondent court appointing a receiver. The supreme court said in

Jacobs

v.

Superior Court,

133 Cal. 364 [85 Am. St. Rep. 204, 65 Pac. 826]: “Formerly—and when

Havemeyer

v.

Superior Court,

84 Cal. 327 [18 Am. St. Rep. 192, 10 L. R. A. 627, 24 Pac. 121], was decided—there was no appeal from an order appointing a receiver, but in 1897 (Stats. 1897, p. 55) section 939 of the Code of Civil Procedure was amended so as to- allow such appeal, and at the same time section 9-43 was amended so as to provide for the staying of an order appointing a receiver by an undertaking on appeal. These amendments were apparently intended to afford a remedy for prodigal, unwise, and unwarranted appointments of receivers which seems to be a growing evil; and we think that they do afford an adequate remedy, as contemplated by . . . section 1103 [of the Code of Civil Procedure] and the decisions of this court on the- subject. The fact that a question of jurisdiction arises does not change the rule as to the adequacy of the remedy by appeal. (See