Woodward v. Superior Court of San Francisco

Paterson, J. This is an application for a writ of prohibition commanding the respondent to refrain from further proceedings upon an order which has been made-appointing a receiver in the case of Woodward et al. v. Raum et al., and authorizing him to sell an undivided interest in the property.

The petition shows that the petitioner and Mary 0». Raum, Helen J. Hutchinson, and Sarah B. Melone, were,, on the 11th of February, 1888, the owners of certains real estate in the city of San Francisco, and known as-Woodward’s Gardens, and that on said day, petitioner;, and Mary 0. Raum, Ely I. Hutchinson, and Sarah B. Melone, were the owners of the personal property used in connection with said gardens, and consisting of animals, curiosities, pictures, statues, etc.; that on said 11th of February, 1888, petitioner and Sarah B. Melone-commenced an action in which they prayed for a partition of said real estate, and if -a partition could not be- had without great prejudice, then for a sale of the premises, and a division of the proceeds among the parties according to their rights; that thereafter the defendants therein, Mary 0. Raum and George E., her husband, Helen J. Hutchinson and Ely, her husband, filed an answer, in which they claimed that partition could be made without prejudice to the owners, and that a sale was unnecessary; that on March 5, 1891, after trial, the court decided that the land could be partitioned without prejudice to the owners, and adjudged that it be divided equally among them; that on September 1, 1888, said Ely Hutchinson and Mary 0. Raum commenced an action against the petitioner and Sarah B. Melone for a sale of the personal property above referred to, and a division of the proceeds in accordance with the interests of the parties; that an answer was filed therein by the. [274]defendants, in which they denied that said Ely Hutchinson was the owner of any interest in said personal property, and alleged that the one-fourth interest claimed by him was owned by his wife, said Helen J. Hutchinson; that the latter should be made a party to the action; that there was an action pending, in which the question was involved as to whether all the property, real and personal, should be sold in its entirety, and the proceeds thereof divided among the parties thereto, and that if the personal property should be sold separately from the land comprising Woodward’s Gardens, it would bring very little money, whereas, if sold with and as a part of the gardens as a whole, the result would be greatly to the advantage of all the parties interested in the property; that on the fifth day of March the court rendered judgment in that action in favor of the plaintiffs, and decided that said Helen J. Hutchinson was not at the time of the commencement of the action the owner of the personal property, or any part thereof, and that the •property was of such a character that partition in specie ■ could not be had, and that it should be .sold under the ■ direction of the court, and the proceeds, after deducting • expenses, be equally divided among the owners; that ■ on the twenty-third day of May, 1891, the respondent, at the instance of said Sarah B. Melone and her husband, Drury Melone, and against the objections of these petitioners, appointed L. N. Daugherty receiver, with . directions to take and keep possession of the property, .real and personal; that a receiver was unnecessary, be- ■ cause it was not shown or claimed that said Sarah B. or Drury Melone had been excluded from possession of . any of the property, or from any of the proceeds thereof, but that, on the contrary, petitioners had offered in writing to allow said Sarah B. and Drury Melone to take exclusive possession of all the property until final determination of the action, which offer was declined; that on the-day of June, 1891, the court made an interlocutory decree in the action of Woodward et al. v. Raum , et al., directing a partition of the property among the