Brush v. Apartment & Hotel Financing Corp.

HOUSER, J.

— This is an appeal from an order appointing a receiver in an action brought to foreclose a mortgage of a leasehold on an apartment house, together with the furniture and furnishings therein contained.

It is contended by appellant that the court abused its discretion in making the appointment and that the court was without jurisdiction in the premises.

By subdivision 2 of section 564 of the Code of Civil Procedure, it is provided in effect that a receiver may be appointed by the court in an action by a mortgagee for the foreclosure of his mortgage “ . . . where it appears . . . that the property is probably insufficient to discharge the mortgage debt.” It is urged by appellant that the court was without jurisdiction in the premises because in the motion for appointment of the receiver plaintiff failed to make an allegation in the language of the statute that the value of the mortgaged property was “insufficient to discharge the mortgage debt.” In that connection, it appears that by allegations contained in the complaint and in affidavits presented by plaintiff in his motion for the appointment of a receiver it was shown “that plaintiff’s security is deteriorating and will so continue to deteriorate,” and “will by the time the within matter comes to trial, be deteriorated and be practically worthless.” However, the facts as stated in the affidavits presented by plaintiff in support of such allegation in substance were that the amount of the mortgage debt was the sum of $6,044; that the value of the furniture and furnishings covered by the mortgage was $3,500; “that if defendants are permitted to continue in possession of the premises for another twelve months, that the furniture, furnishings and equipment will not bring in over the sum of two thousand ($2000.00) dollars”; also the fact of the pendency of an action for the condemnation of real property, in which action the cancellation of the leasehold here in question was sought, and that by reason of such condemnation action plaintiff’s se

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curity “will be greatly if not totally extinguished and impaired.”

It is clear that a bare statement in the language of the statute would be insufficient to confer jurisdiction. What is necessary, and to which the court must look for its authority, is that there be not mere conclusions, but specific facts as alleged either in the complaint or in the affidavits supporting the motion. If such facts bring the case of the applicant within the language of the statute, it is just as immaterial that the plaintiff failed to correctly label them, as it would have been impotent that with the greatest of care he used the exact wording of the statute, but failed to set up the facts which established such conclusion. In other words, it is substance, rather than form, that is required, and upon which the conclusion of the court must rest.