McConaghy v. McConaghy

GRIFFIN, P. J. In a prior divorce action, plaintiff obtained an interlocutory decree of divorce on May 9, 1961. There, the court held that a trailer park in San Ysidro was held by the parties as joint tenants. Thereafter, plaintiff wife filed this action for partition, for waste, and asked for the appointment of a receiver of the property. On June 1, 1962, the court rendered an interlocutory decree in this action appointing a receiver and directing a sale of the property. Defendant here appealed from this decree and the appeal was subsequently dismissed on motion in this court for failure to perfect the appeal. The decree became final. It provided that a receiver be appointed, naming him, and a bond of $5,000 was fixed and posted. The receiver was directed to take charge of the property and order such work done and repairs made as to comply with the city ordinances and to pay for same out of the rents and profits, and if these were insufficient the receiver was to have the authority to borrow such funds as might be needed and use the real property as security therefor upon approval of the court as to the amount and terms.

On September 28, 1962, an order to show cause was issued and served on defendant as to why an order should not be made to obtain additional funds needed by the receiver to do necessary painting and repairs to the property. Defendant [469]appeared and the court signed an order on October 9, 1962, authorizing the receiver to borrow $4,000 and to give as security an assignment of rents. Defendant appealed from this order. There was no bond staying execution filed.

On a motion to dismiss the appeal, plaintiff reported that the loan had already been consummated prior to the appeal from the order and the money derived therefrom had already been spent in repairs to the property, and stated that a sale of the property had been effected and that the payment of the loan would be made therefrom, that the sale had not at that time been approved, but that such sale would no doubt be approved before this appeal was decided. It was further contended that the order from which the appeal was taken was not an appealable order, under Code of Civil Procedure, section 963, and that the appeal was frivolous. At the hearing of the motion, it was, by consent, continued to be heard and considered at the time of the hearing on the merits on appeal. At this hearing, the parties conceded that the sale of the property had been approved by the trial court and the loan had been repaid from the funds derived from the sale. Defendant then contended that the sale was invalid.