Title Guarantee & Trust Co. v. Lester

WASTE, C. J.

Motion to dismiss appeal or to affirm order appealed from.

Plaintiff instituted this action to recover possession of certain real property. The complaint, among other things, alleged that the defendant had violated the terms of a certain deed of trust in a manner warranting the requested relief. In accordance with the prayer of the complaint, the trial court on July 24, 1931, made its

ex parte

order appointing receivers to take possession of and care for the property pending the trial of the cause. Thereafter and on August 12, 1931, the trial court overruled defendant’s demurrer to the complaint, and denied his motion to vacate the order appointing receivers. On August 22, 1931, the defendant filed a notice of appeal, which notice reads as follows:

“Notice is hereby given that the defendant herein does hereby appeal to the Supreme Court of the State of California from that certain order and decision and the whole thereof made and entered in the above entitled action on or about the 12th day of August, 1931, wherein and whereby Charles F. Allison and A. J. Showalter were appointed by said court as receivers and were ordered to take possession of the real property mentioned and described in said order. ’ ’

Inspection of the transcript discloses that the order appointing receivers was not entered August 12', 1931, the date specified in the notice of appeal. That appears to be the date of entry of the order denying appellant’s motion to vacate the order appointing receivers. Relying upon this apparent discrepancy in the notice of appeal and contend

[374]

ing that the order refusing to vacate is a nonappealable order, respondent moves to dismiss.

Notices of appeal are not strictly construed, and an appeal will not be dismissed because of a misdescription of the judgment or order to which it relates unless it appears that the respondent has been misled by such misdescription.

(Estate of Smead,

215 Cal. 439 [10 Pac. (2d)