vs. Norton, 1 Paige, p. 17; Field vs. Ripley, 20 How., p. 26; Kemp vs. Harding, 4 How., p. 178; Dorr vs. Noxon, 5 How., p. 29. Except in special cases, where irreparable injury or the like will be sustained by the delay.-West vs. Swann, 3 Edw. Ch., p. 420. The merits are not inquired into upon the motion to appoint a Receiver.-Sheldon vs. Weeks, 2 Barb., p. 532; Conro vs. Gray, 4 How., p. 166; Higgins vs. Bailey, 7 Rob., p. 613. The application relates only to the preservation of the property.-Sheldon vs. Weeks, 2 Barb., p. 532; Chapman vs. Hammersly, 4 Wend., p. 173. The appointment rests in the sound discretion of the Court. Copper Hill M. Co. vs. Spencer, 25 Cal., p. 15. A third party cannot take advantage of an irregularity in the appointment.-Tyler vs. Whitney, 12 Abb., p. 465; Tyler vs. Willis, 33 Barb., p. 327. The Court may revoke the order appointing a Receiver at any time before the appointment is consummated, and appoint another person.-Siney vs. N. Y. Col. Stage Co., 28 How., p. 481; 18 Abb., p. 435. 2. Subd. 2.-The purchaser at judicial sale of a mining claim, may, where the judgment debtor remains in possession, working the claim, and is insolvent, have a receiver appointed to take charge of the proceeds pending the time for redemption.-Hill vs. Taylor, 22 Cal., p. 191. A crop of grain is part of the land, and if a plaintiff is entitled to recover the land from the possession of another, he is also (the proper showing being made) entitled to a receiver to harvest and preserve the crop.Corcoran vs. Doll, 35 Cal., p. 476. 3. Subd. 2.-See Guy vs. Ide, 6 Cal., p. 101; Hill vs. Taylor, 22 Cal., p. 191. As a general rule, the mortgagee in possession will not be deprived of the possession by the appointment of a receiver.-Bolles vs. Duff, 35 How., 481. Caution must be used in appointing a receiver in mortgage cases.-Shotwell vs. Smith, 3 Edw. Ch., p. 588; Bank of Ogdensburg vs. Arnold, 5 Paige, p. 38; Warner vs. Gouvernor's Ex., 1 Barb., p. 36. If the mortgagee in a chattel mortgage has possession, a receiver will only be appointed in case of pressing necessity.-Bolles vs. Duff, 35 How., p. 481; Patten vs. Accessory Transit Co., 4 Abb., p. 235. See, also, 5 Duer, p. 618, and 28 Barb., p. 451. 4. Subd. 3.-May be appointed in proceedings supplementary to execution.--Hathaway vs. Brady, 26 Cal., p. 586.—After judgment, in an action to recover possession of real estate, and while a motion for a new trial is pending, a receiver of the rents and proceeds of the property in dispute may be appointed, if the facts of the case are such as warrant it.-Whitney vs. Buckman, 26 Cal., p. 536. 5. Subd. 4.-See Hathaway vs. Brady, 26 Cal., p. 586. 6. Subd. 5.-See Sec. 565 of this Code. In Neal vs. Hill, 16 Cal., p. 148, it was held that a Court of equity has no jurisdiction over corporations for the purpose of restraining their operations or winding up their concerns; that while it might compel the officers of the corporation to account for any breach of trust, the jurisdiction for this purpose was over the officers personally, and not over the corporation; hence it was error in the Court below to appoint a receiver and decree a sale of the property and a settlement of the affairs of the corporation. 7. Subd. 6.-Courts of equity have the authority to appoint receivers, and may order them to take possession of the property in controversy, whether in the immediate possession of the defendant or his agents; and in proper cases they can also order the defendant's agents or employés, although not parties to the record, to deliver the specific property to the receiver.-Ex Parte Cohen, 5 Cal., p. 494. Where the allegations of a bill are general in their nature, and the equities are fully denied by the answer, such a case is not presented as will authorize the appointment of a receiver, the withdrawal of the property from the hands of one acquainted with all the affairs of the concern, and placing it in the hands of another who may not be equally competent to manage the business.-Williamson vs. Monroe, 3 Cal., p. 385. 8. GENERALLY.-Where it appears that the partners, parties to the suit for a dissolution, held a judgment against a third party which was never reduced to the possession nor under the control of the receiver, it was held: that the appointment of the receiver did noť operate as an assignment nor transfer any property not so reduced to possession within a reasonable time. Money in the hands of a receiver is in custodia legis.—Adams vs. Woods, 8 Cal., p. 306. The transfer to a receiver by order of Court of the effects of an insolvent in the suit of a judgment creditor, is not an assignment absolutely void under the Insolvent Act of 1852, but is only void against the claim of creditors.-Naglee vs. Lyman, 14 Cal., p. 450. The pendency of a motion for a new trial does not operate as a stay of proceedings, so as to deprive the Court of the right to vacate an order appointing a receiver made before the trial. But where a receiver has been appointed, and on the trial, Appoint- of corporations. judgment of nonsuit is rendered against the party at whose instance the receiver was appointed, a motion for a new trial suspends the operation of the judgment so as to prevent it from operating as a discharge of the action, unless an order is made discharging the receiver.-Copper Hill M. Co. vs. Spencer, 25 Cal., p. 15. 565. Upon the dissolution of any corporation, the District Court of the county in which the corporation dissolution carries on its business, or has its principal place of business, on application of any creditor of the corporation, or of any stockholder or member thereof, may appoint one or more persons to be receivers or trustees of the corporation, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation, and to pay the outstanding debts thereof, and to divide the moneys and other property that shall remain over, among the stockholders or members. Who shall not be NOTE.-Stats. 1850, p. 347, Secs. 16, 18; 1862, p. 199, Sec. 25. 566. No party, or attorney, or person interested appointed. in an action, can be appointed receiver therein. Oath and Powers of NOTE.-A person should not be appointed receiver who by his own act stands in an improper relation to the action.-Smith vs. N. Y. Con. Stage Co., 28 How., p. 208, 18 Abb., p. 419. 567. Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties, approved by the Court or Judge, execute an undertaking to such person, and in such sum as the Court or Judge may direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the Court therein. 568. The receiver has, under the control of the Court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the Court may authorize. NOTE. GENERALLY.-He may employ counsel.Adams vs. Woods, 8 Cal., p. 315. Generally, he can pay out nothing, except on an order of the Court; but there are exceptions to the rule, and he will not be denied reimbursements in every case in which he neglects to obtain the order, especially in a Court of equity.-Adams vs. Woods, 15 Cal., p. 207. On an application, after final judgment, for an order for a receiver, that he pay over to the prevailing party money in his hands as receiver, it will not be presumed that the receiver has transcended his duties and took possession of property to which he was not entitled; nor is the opposite party entitled to have issues framed and submitted to a referee or jury to ascertain the ownership of the money in the receiver's hands.-Whitney vs. Buckman, 26 Cal., p. 451. 2. FEES.-See Adams vs. Haskel, 6 Cal., p. 475. of funds. 569. Funds in the hands of a receiver may be Investment invested upon interest, by order of the Court; but no such order can be made, except upon the consent of all the parties to the action. CHAPTER VI. DEPOSIT IN COURT. SECTION 572. Deposit in Court. 573. Money paid to Clerk must be deposited with County 574. Manner of enforcing the order. Court. 572. (§ 142.) When it is admitted by the plead- Deposit in ing, or shown upon the examination of a party, that he has in his possession or under his control any money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the Court may order the same, upon motion, to Money paid to Clerk must be deposited with County Treasurer. Manner of enforcing the order. be deposited in Court or delivered to such party, upon such conditions as may be just, subject to the further direction of the Court. 573. If the money is deposited in Court it must be paid to the Clerk, who must deposit it with the County Treasurer, by him to be held subject to the order of the Court. For the safe keeping of the money deposited with him the Treasurer is liable on his official bond. NOTE.-Stats. 1864, p. 468. 574. Whenever, in the exercise of its authority, a Court has ordered the deposit or delivery of money, or other thing, and the order is disobeyed, the Court, beside punishing the disobedience, may make an order requiring the Sheriff to take the money; or thing, and deposit or deliver it in conformity with the direction of the Court. TITLE VIII. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. CHAPTER I. Judgment in general. II. Judgment upon failure to answer. ponements. IV. Trial by jury. V. Trial by the Court. VI. Of references and trials by referees. |