Garniss v. Superior Court
Before: Garoutte
Synopsis
Receiver—Ejectment—Appointment Pending Appeal — Rents and Profits — Order Decreeing Right to Monets — Judgment. — An order decreeing that moneys collected by a receiver appointed to receive the rents and profits of land, pending appeal from a judgment in an action of ejectment, is the property of the party finally recovering in the action, is not a judgment for the rents and profits of the realty, or any part of the final judgment in the action of ejectment, or any judgment whatever upon which execution could issue.
Id. — Termination op Receiver’s Right — Holding por Parte Recovering — Decree op Court. — The powers and duties of a receiver appointed to collect rents and profits pending an appeal in an action of ejectment are at an end when the rights of the parties are finally established, and he is then considered as holding for the benefit of the parties entitled to the property; and a specific decree of the court declaring the funds in the receiver’s hands to be the property of the party finally recovering the possession of the land in controversy is not required to perfect the title of such party to them.
Id.—Assignment oe Right to Funds — Lien op Receiver for Fees and Costs — Part op Entire Demand.—The assignment of the entire right of the prevailing party to the funds in the hands of the receiver cannot be objected to by the receiver on the ground that the money in his hands was subject to a lien upon it for his fees and costs of receivership, and that the assignment therefore was for part of an entire demand.
Id. — Jurisdiction os Justice’s Court —Appellate Jurisdiction — Action against Receiver by Assignee oe Funds — Assumpsit — Equity. — An action in the justice’s court by the assignee of the funds in the hands of the receiver is an action at law in assumpsit, and not a suit in equity, and is within the jurisdiction of the justice’s court, if the fund sued for is less than three hundred dollars, and is within the appellate jurisdiction of the superior court.
Certiorari—Practice—Jurisdiction—Appeal prom Justice’s Court — Estoppel. — It is the better practice directly to assail the jurisdiction of the justice’s court in some appropriate manner, if it is assailable on any ground, rather than to appeal a case therefrom to the superior court upon its merits, and then assail the jurisdiction of the superior court upon writ of certiorari. Whether such an appeal estops the appellant from questioning the jurisdiction of the superior court upon certiorari is not decided, the case in judgment being within its appellate jurisdiction.
Garoutte, J. Application for writ of review.
The facts set out in petitioner’s application are as follows: “That one Horace W. Philbrook, upon the fifteenth day of April, 1890, commenced an action against the petitioner in the justice’s court of the city and county of San Francisco upon a complaint stating, among other things, ‘that on the twenty-ninth day of May, 1889, in the superior court of the city and county of San Francisco, a civil action was commenced by Edward Harrison, administrator, et al., against Mary J. Lynch et al., for the purpose of recovering from said Mary J. Lynch a certain lot of land, and of barring the other defendants of all rights, title, and interest therein; that on the fourth day of February, 1889, a judgment was rendered in said action against the said defendants; [415]that on the twenty-seventh day of March, 1889, and prior to the commencement of the action of Philbrook v. Garniss, the superior court appointed James R. Garniss (defendant herein) receiver, to receive, hold, and preserve, during the pendency of an appeal from said judgment, the rents of said lot of land; that prior to January 1, 1890, said receiver, as such, received the sum of $480 as rents of the property; that on the eighth day of November, 1889, said superior court-granted a new trial in said cause, and upon the eleventh day of December, 1889, rendered judgment in said action in favor of Mary J. Lynch, declaring her to be the owner of said lot of land and the money in the hands of the receiver; that on the twenty-eighth day of February, 1890, said Mary J. Lynch assigned to this plaintiff (Philbrook) all moneys belonging to her in the hands of said receiver; that on the seventh day of March, 1890, the court settled the receiver’s accounts, and allowed him, as credits as such officer, all of said $480, except the sum of $274.50, and directed him to pay said sum to Mary J. Lynch; that on the tenth day of March, 1890, plaintiff notified the receiver of the assignment, and demanded the payment to him of the $274.50, but he has refused to pay the same. Plaintiff prays for judgment,’ etc.
“ Defendant answered this complaint with a general denial, and at the opening of the trial objected to the justice’s court trying the action, upon the ground that it was an action in equity, and therefore the court had no jurisdiction. The objections were overruled, and upon trial the plaintiff obtained judgment as prayed for.
“The defendant appealed the case to the superior court, filed an amended answer, and at the commencement of the trial objected to the jurisdiction of the superior court to try the case, upon the ground that its jurisdiction in equity was original, and it had no appellate jurisdiction in such a case. The objections were overruled, and the trial resulted in another judgment for
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