Hibernia Savings & Loan Society v. Ellis Estate Co.

WASTE, C. J. The appellant, plaintiff in this action to foreclose a mortgage, on the same day that it filed the complaint, filed an affidavit in support of an application for an order appointing a receiver. Acting solely upon such affidavit, and without examination of the complaint or other evidence, the court made its ex parte order appointing a receiver, with the powers and duties usually incident to such a receivership. The defendants, respondents here, moved the court to discharge the receiver and to rescind the order appointing him. The court granted the motion. It rescinded the order of appointment, and directed the receiver to pay over to the defendants the moneys collected by him on the ground that the order was void, in that the appointment was made inadvertently and without sufficient cause. From this order the plaintiff has appealed. Eespondents move to dismiss the appeal, and for an affirmance of the order vacating the appointment of the receiver upon the ground that no appeal lies from such an order. It is provided in section 963, subdivision 2, of the Code of Civil Procedure that an appeal may be taken from an order appointing a receiver; but no appeal is provided from an order setting aside and vacating an order appointing a receiver. The order here appealed from is not one made after judgment. It is a general rule that orders relating to vacation of orders cannot be made the subject of direct appeal unless they themselves be of a class of orders designated by the code as appealable. (See Luckenbach v. Laer, 190 Cal. 395, 396 [212 Pac. 918].) But appellant contends that the order here appealed from is a final judgment, in that it amounts to a final determination of a collateral matter distinct from the general subject of litigation *282 —a judgment that is conclusive of a question in the case, and final as to that question. (2 Cal. Jur., p. 144, sec. 21.) An order vacating an order appointing a receiver, and directing him to pay over the money collected by him has the effect of discharging the receiver; and this is so, although it does not so provide in terms. While the receiver is an indifferent person as between the parties, and is appointed in behalf of all who may establish rights in the cause, the plaintiff, at whose request the receiver was appointed, having asserted a reasonable probability of being ultimately entitled to a decree in the action, is interested in having the receivership continued, in order that the property and its issues and profits may be preserved. Therefore, it would seem that the order vacating the order appointing the receiver and directing him to pay the money collected by him over to the defendants, which order, in effect, amounts to a discharge of the receiver, is of such finality on that phase of the case as to be appeal-able as a final judgment within the meaning of section 963 of the Code of Civil Procedure. (Los Angeles v. Los Angeles City Water Co., 134 Cal. 121 [66 Pac. 198] ; Anglo-Californian Bank v. Superior Court, 153 Cal. 753, 756 [96 Pac. 803].) The motion to dismiss the appeal is denied. Shenk, J., Seawell, J., Tyler, J., pro tem., and Curtis, J., concurred.