Real Estate Associates v. Superior Court

The Court: The Real Estate and Building Associates, on petition, obtained from this Court an order that the Superior Court, in and for the City and County of San Francisco, Department Ten, and Hon. Charles Halsey, judge thereof, show cause why a writ of review should not issue, to review certain proceedings had before said Judge concerning the appointment of a receiver. The respondent objected to the granting of the writ, such objection being in the nature of a demurrer to the petition.

Section 63 of the Insolvent Act of 1880 says: “A receiver may be appointed by the Court,” etc. It is claimed that this language limits the appointment to the Court when in session as such, and that the judge in chambers can not make the appointment. The latter part of the section provides that the appointment, etc., shall in all respects be regulated by the general laws applicable to receivers. Section 564, C. C. P. (which is a portion of the general laws applicable to receivers), provides that a receiver may be appointed by the Court or the Judge thereof, and Section 566 recognizes the appointment of a receiver upon an ex parte application. Section 166, C. C. P., authorizes a Judge of a Superior Court to grant, at chambers, all orders and writs which are usually granted in the first instance upon an ex parte application, and to hear and dispose of such orders and writs. Regarding these various sections together, we are of opinion that the Judge may, in an insolvency proceeding, ex parte, and at chambers, appoint a receiver.

It does not appear from the petition in this case, whether the order appointing a receiver was made with or without notice; nor does it appear but that the Court was fully justified in directing its officer to take possession of the property named, for the purpose of holding it until an adjudication should be had. This writ goes only in cases of excess of jurisdiction. It may be that the allegations of the petition for the appointment of the receiver showed a case in which [228]it was eminently proper that the hand of the law, by a receiver, should be interposed.

The objections of the respondent are sustained, the order to show cause is discharged, and the order staying proceedings in the lower Court is revoked.

McKinstry, J., dissented.

Ross, J., expressed no opinion.