Grant v. Los Angeles & Pacific Railway
Before: Fleet
Synopsis
Appeal—Substitution of Plaintiff. — An order refusing to vacate an order substituting a person as plaintiff in place of the original plaintiff is not appealable. Such order is subject to review only on appeal from the fiual judgment.
Id.—Receiver—Order Fixing Compensation.—An order fixing the compensation of a receiver, and taxing it as costs in the action as against all the parties, and directing him to apply toward its payment the balance of the fund remaining in his hands as such receiver, is, in legal effect, a final judgment upon a collateral matter arising out of the action, and is appealable by any party interested in the fund..
Id.—Appointment of Receiver—Estoppel.—Where a particular person is appointed a receiver by consent of the then parties to the action, and thereafter, upon objections made by intervening creditors, he is removed, and another person is appointed receiver at the request of such intervenors, a party who is subsequently substituted as plaintiff in the place of the original plaintiff is not estopped to question the validity of the appointment of the second receiver.
Van Fleet, J. The record embraces appeals from two orders of the superior court—the first an order fixing the compensation of one Silver as receiver in the action, and the other an order denying an application of the appellant, Grant, to vacate a former order sub[72]stituting him as plaintiff in the action in place of the California Bank, the original party plaintiff.
Respondents object that the orders are not appealable, and that both appeals should be dismissed, and ask that such disposition be made.
As to the order of substitution, this objection is well taken. The statute gives no appeal from such an order, and it is subject to review only on appeal from a final judgment. (Code Civ. Proc., secs. 939, 956, 963; Wells v. Allen, 54 Cal. 211.)
As to the order fixing the receiver’s compensation, while not nominally one from which the statute authorizes a direct appeal, and while it sufficiently appears that it is not a special order made after final judgment, it is nevertheless an adjudication from which an appeal will lie. The order not only fixes the compensation of the receiver, but taxes such compensation as costs in the action, as against all the parties, and directs and authorizes the receiver to apply toward its payment the balance of a fund remaining in his hands as such receiver. Such an order, however it may be designated, is, in legal. effect, “a final judgment upon a collateral matter arising out of the action,” and is “appealable by any party interested in the fund.” (Grant v. Superior Court, 106 Cal. 324, and cases there cited.) The appellant has such an interest.
Appellant contends that the order appointing the receiver in the action was absolutely void upon its face for want of jurisdiction in the court to make it; and that the order fixing the compensation of the receiver, being founded thereon, is equally void.
That the order appointing the receiver was void is not denied by defendant, and has been so held by this court in two cases in which that particular order was under review (Smith v. Superior Court, 97 Cal. 348; Smith v. Los Angeles etc. Ry. Co., 34 Pac. Rep. 242), where it was held that the action was not one in which a receiver could be competently appointed.
Respondent contends, however, that, notwithstanding [73]
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