Haines v. Commercial Mortgage Co.

THE COURT.

This appeal is from an order of the superior court in and for the county of Los Angeles by the terms of which a receivership applied for and granted

ex parte

to the defendant was set aside and annulled upon the application of the plaintiffs, made promptly upon being advised of the making and entry thereof. The plaintiffs, as appears from the record, made two such applications, the first of which was, apparently for some defect in the form or sufficiency of the moving papers or of the notice given thereof, denied “without prejudice.” The plaintiffs promptly renewed their motion and upon a hearing thereon the trial court granted the same, and in so doing ordered, adjudged, and decreed that its former order for the appointment of a receiver be annulled, revoked, set aside, and canceled, and that the receiver appointed thereby and qualified thereunder surrender and deliver over to the plaintiffs all properties of every kind, nature, and description coming into his possession under and by virtue of said order, appointing him such receiver. The appellant appeals from the order thus setting aside such re

[12]

ceiversliip and makes two points upon this appeal. The first is that the prior orders of the trial court appointing such receiver and thereafter, upon the plaintiffs’ first motion, refusing to set aside its

ex parte

order made in that behalf, rendered the matter of the regularity of the appointment of such receiver

res judicata.

There is no merit in this contention. An order made

ex parte

appointing a receiver may be set aside by the trial court making the same, upon seasonable application of the parties injuriously affected by said order and who had been given no opportunity to resist the same upon the application for and the granting of such

ex parte

order. The action of the trial court in the instant ease in refusing to set aside such order upon the plaintiffs’ first application therefor was “without prejudice” to a renewal of such application, and such renewal of the application having been seasonably made, neither the original order nor the order refusing to vacate the same without prejudice could be