Mesnager v. De Leonis

'LORIGAN, J. This is an appeal from two orders made after the final decree in a suit for partition—the one allowing compensation to the receiver in the action for his services and those of his attorney, the other allowing compensation to the referee; also, an appeal from that part of the final decree directing payment of the amounts. The action in partition was commenced in 1898, and the receiver, Goldsworthy, was appointed in 1899, over the opposition -of appellants. He qualified as such with the knowledge of all the parties to the action, and continued to so act until the premises to be partitioned were sold by the referee in 1901. No appeal was taken from the order appointing said receiver. Appellants, however, make the point on this appeal from the orders making such allowance that the original order appointing the receiver was void. We cannot so consider it. This is an action in partition, and in such action, in proper cases, a receiver may be appointed. The lower court had jurisdiction of the subject-matter and the parties, and had power to hear and determine a motion for such appointment. The order was made upon notice, and it is of no moment that the notice was given under the original complaint, and disposed *404 of after an amended and supplemental complaint was filed. It came on regularly for hearing under the latter, and appellants appeared to it and opposed it. The order was made, no appeal was taken from it, and there the matter rested until the final decree of partition was made. As far as the opposition of appellants to the appointment is concerned, the record simply shows that they opposed it; it does not disclose the ground of the opposition, whether it consisted of an objection to the jurisdiction, or contest on the merits. Neither is there anything in the record showing what facts were presented to the court on the hearing, and in the absence of such it must be presumed, in favor of the order appointing the receiver, that all the evidence essentially necessary to authorize the court in so doing was presented. As this appeal is in the nature of a collateral attack upon the order appointing the receiver, it is well settled that as against such an attack, “if the jurisdiction of the court can in any event be upheld and its action validated, this will be done even though the facts showing such jurisdiction are defectively stated and inferences must be indulged in to support the judgment.” (Illinois T. and S. Bank v. Pacific Ry. Co., 115 Cal. 296; Woodward v. Superior Court, 95 Cal. 276.) Concerning the allowance to the referee (who does not appear to be represented on this appeal), appellants insist that the court should have allowed him but five dollars a day for Ais services as sucA referee. The court, however, allowed him a much larger sum, proceeding under section 768 of the Code of Civil Procedure, which grants discretion to the court in fixing the fees of referees in partition. Counsel insists that this section is not the law governing the matter. It appears that at the same session of the legislature (1872-1873) which adopted the codes, section 280 of the Practice Act then in force, concerning referees’ fees in partition, was amended (Stats. 1871-1872, p. 230), so as to allow such referees only the fees allowed by law, which it is contended, were provided for by section 280 of the Practice Act, now section 1028 of the Code of Civil Procedure, at five dollars a day. In support of this position counsel relies upon section 4479 of the Political Code, which provides that any law passed at the session of the legislature which adopted the codes, and which is inconsistent *405 with the provisions of either of them, must prevail over them; that the said amendment to the Practice Act, having been passed at the same session of the legislature that adopted the codes, and being inconsistent with section 768 of said Code of Civil Procedure, superseded it and is the prevailing law. We are not disposed at this late day, and in this instance, to construe this section of the Political Code as broadly as counsel contends for. It may be a grave question whether the application of that section is not to be limited to the substantive body of the law, rather than to be extended to matters of procedure. However that may be, the learned annotators of our codes have never given this lone section of the Practice Act the place in the provisions of the Code of Civil Procedure in general use, which counsel now claims it is entitled to and should occupy. On the contrary, section 768 has been contained therein for many years, as the law on the subject, and the legal profession and the courts have with entire unanimity accepted it as such, and have acted on the theory that it has been the law, ever since the codes went into effect. In Treadwell v. Treadwell, 134 Cal. 158, this court says, on an appeal where the sole question was addressed to the compensation of referees in partition: “In a case of this character, as in fixing the amount of an attorney’s fee, the trial court is allowed a wide discretion, and upon appeal a plain abuse of that discretion must appear or the judgment will be affirmed.” While no mention is made in that decision of section 768 of the code, it is undoubtedly the one under which the decision was rendered, because as between it and the amended section of the Practice Act, it alone vests discretion in the court. As to the further point that the showing was insufficient to warrant the court in making such allowance as it did, we think it without merit. Discretion is allowed the court, as above indicated, in determining what is a proper compensation for a referee, and ■there is nothing in the record which indicates that other than a just amount was awarded. The orders and portions of the decree appealed from are affirmed. McFarland, J., and Henshaw, J., concurred.