Sherwood v. Jackson

STURTEVANT, J.

Heretofore the plaintiff and and defendant were partners; an application to dissolve the partnership was presented to the court and a receiver was appointed; after the appointment of the receiver, the plaintiff, who had theretofore been the managing partner, was named as manager under the receiver; while so acting she suffered personal injuries caused by the defendant and commenced an action to recover damages, and in that action she obtained a judgment awarding her $2,005 and costs. No order staying execution was entered. Thereafter on May 22, 1931, the plaintiff appeared

ex parte

in the action brought to dissolve the partnership and obtained an order permitting her to levy execution on the defendant's interest in the partnership; thereafter, without any notice to the defendant, the execution was levied and the interest of the defendant was sold and the plaintiff became the purchaser thereof for the sum of $1,000. On June 12, 1931, in the damage suit, the defendant gave notice of a motion to recall the execution and to quash the execution sale. Later that motion came on for hearing and the trial court granted the motion. From the order granting the motion the plaintiff has appealed.

Within the scope of the defendant’s moving papers some questions were presented which were not heard or discussed in the trial court and therefore will not be taken up by this court.

In her opening brief the plaintiff contends (1) the execution sale and the proceedings therefor were in strict accordance with the legal requirements; (2) assuming that the consent of the court in which the dissolution proceedings were

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pending was necessary, such consent was obtained and that notice of the application for such consent was not necessary; (3) as the execution sale merely affected the title to the property and did not in any way affect the receiver’s possession thereof, no permission to levy the writ of execution was necessary; (4) and that Civil Code, section 2422, has no application. In the view that we take it will not. be necessary to discuss anything excepting the fourth point. It is the earnest contention of the plaintiff that there is nothing in the statute, Civil Code, sections 2418-2422, which precluded her from taking the proceedings which she took. With this contention we cannot agree. Section 2418 is as follows: “Extent of property rights of a partner.