Baughman v. Superior Court

McKinstry, J. Petitioner, as surviving partner of the firm of Ruoff and Baughman, prosecuted an action in the Superior Court against one R. B. Reed, and in the prayer of his complaint, amongst other demands, asked that a receiver be named to take charge, “ pending the action,” of certain grain, in which, in said complaint, he claimed an interest. Upon the complaint, the superior judge appointed one A. J. Wilson receiver “to take charge of, and hold, preserve, and keep,” the grain, “and for that purpose to take such measures and employ such help as may be requisite.”

Wilson qualified as receiver, and took possession of the property.

[573]Afterward the defendant in the action demurred to the complaint, on the ground that it stated no cause. The demurrer was sustained, and the plaintiff neglecting and refusing to amend, final judgment in favor of the defendant was entered in the Superior Court.

Subsequently the defendant moved said court to set aside the order appointing the receiver and that the receiver be discharged.

The prayer of the complaint did not give such character to the appointment as that, in case of an appeal, the receiver could not be discharged until the final determination of the cause in this court. The defendant has an undoubted right to move for the discharge of a receiver pendente lite. (High on Receivers, 846.)

The present application is that the Superior Court be prohibited from hearing or determining the motion of defendant in the action aforesaid for the discharge of the receiver. It is claimed the Superior Court has no jurisdiction to determine the motion, inasmuch as the plaintiff in the action had appealed from the final judgment.

Section 564 of the Code of Civil Procedure provides that a receiver may be appointed “ by the court in which an action is pending, or the judge thereof.” The action above mentioned was not brought to procure a judgment appointing a receiver. The appointment by the court or judge is a matter ancillary to the main proceedings in an action, and is for the purpose of protecting property or a fund until the judgment in the Superior Court, and to secure its, application as, in express terms or by implication, may be required by such judgment.

Section 946 of the same Code provides that whenever an appeal is perfected it stays all further proceedings in the court below “ upon the judgment or order appealed from, or upon the matters embraced therein”; and the appeal releases property levied on, “ but the court below may proceed upon any other matter embraced in the action,” etc.