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6. A receiver is an officer of the court; He is aphis appointment is provisional. pointed in behalf of all parties, and not of the complainant or of the defendant only. He is appointed for the benefit of all parties who may establish rights in the cause. The money in his hands is in custodia legis for whoever can make out a title to it. is the court itself which has the care of the property in dispute. The receiver is but the creature of the court; he has no powers except such as are conferred upon him by the order of his appointment and the course and practice of the court.-Spring Valley Water Co. v. San Francisco, 225 Fed. 728.

§ 565.

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1. Receivers for corporations-Construction of section.-The provisions of this section are not rendered inapplicable to case where the corporation has been dissolved for a considerable time, because the use of the words therein "upon the dissolution," as such phrase means "after dissolution" and is not limited to any particular lapse of time.-Henderson v. Palmer Union Oil Co., 29 Cal. App. 451, 156 Pac. 65.

2. The provisions of this section and section 400 of the Civil Code were not intended to apply in case of dissolution of a corporation by and according to any particular method.-Henderson v. Palmer Union Oil Co., 29 Cal. App. 451, 156 Pac. 65.

3. Jurisdiction to appoint.-Upon the dissolution of a corporation by expiration of its charter the jurisdiction to appoint a receiver is limited to the particular superior court of the county where the corporation carries on its business or has its principal Henderson V. Palmer place of business. Union Oil Co., 29 Cal. App. 451, 156 Pac. 65.

§ 566.

1. Undertaking of receiver — . - Appeal.The undertaking required by this section is indispensable, and the undertaking of section 567 can not substitute therefor.-Stoff v. Erken, 172 Cal. 481, 156 Pac. 1033.

2. Upon appeal from such an order, a certified copy of the undertaking in the form required by section 566 of the Code of Civil Procedure, filed in the appellate court after the filing of the transcript, can not be considered, when the bill of exceptions does not contain such undertaking or any order referring to or providing for it or fixing its amount.-Stoff v. Erken, 172 Cal. 481, 156 Pac. 1033.

§ 567.

1. Filing new undertaking cures defective one. Where a motion to discharge a receiver is made on the sole ground that the undertakings are defective, and before the court makes its order on the motion, the filing of new undertakings in proper form is made, the defects in the original undertakings are cured, so as to make the appointment valid at least from the time of the filing of the new undertakings.Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 564.

§ 568.

POWERS OF RECEIVER.

1. Character of office of receiver. 2-4. As to right of receiver to appeal. 5-7. Receiver's certificates.

1. Character of office of receiver.—A receiver is an indifferent person between parties, appointed by the court to receive the rents, issues or profits of land, or other thing in question in this court, pending the suit, where it does not seem reasonable to the court that either party should do it.Spring Valley Water Co. v. San Francisco, 225 Fed. 728.

2. As to right of receiver to appeal.-A receiver has no interest or concern and hence no right of appeal from the portion of such an order which directs him to pay over the money in his hands in a particular way.-Edwards v. Western Land & Power Co., 27 Cal. App. 724, 151 Pac. 16.

3.

No appeal lies from an order discharging a receiver for the reason that the code does not provide for such an appeal, and for the additional reason that a receiver, being the mere servant or agent of the court, has no such interest in the action as would entitle him to appeal from an order for his discharge.-Edwards V. Western Land & Power Co., 27 Cal. App. 724, 151 Pac. 16.

4. A receiver, however, has the right of appeal from such an order in so far as it undertakes to settle his accounts and fix his compensation; it is held herein, however, that the appellant has no cause of complaint in such regard.-Edwards Western Land & Power Co., 27 Cal. App. 724, 151 Pac. 16.

V.

5. Receiver's certificates.-While it is the general rule that the court in cases of private corporations will not, as against the objection of a minority of the bondholders, issue receiver's certificates and make them a prior lien upon the mortgaged property, for the purpose of procuring funds to continue the management and operation of the business, there can be no question of the right of the court to give priority to certificates issued to enable the receiver to carry out the primary object of his appointment, viz., the care and preservation of the property. Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 564.

6. Certificates issued by the receiver for the preservation of the property are not to be denied recognition because of the finding that a bondholder purchased some of the bonds of the foreclosed corporation and contrived to have such corporation default in the payment of interest, to the end that a foreclosure suit and that receiver's certifisuch cates might be issued and sold to bondholder, thus enabling it to defeat the claims of the bondholders and purchase the property itself, where it is not found that the plaintiff had any knowledge of such fraud.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 564.

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ized from the sale of such certificates were made in a foreign jurisdiction, where the expenditures were necessary to preserve the properties within the jurisdiction, and the

same greatly enhanced thereby.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 564.

§ 570. DISPOSITION OF UNCLAIMED FUNDS IN HANDS OF RECEIVER. A receiver having any funds in his hands belonging to a person whose whereabouts are unknown to him, shall, before receiving his discharge as such receiver, publish a notice, in one or more newspapers published in the county, at least once a week for four consecutive weeks, setting forth the name of the owner of any unclaimed funds, the last known place of residence or post-office address of such owner and the amount of such unclaimed funds. Any funds remaining in his hands unclaimed for thirty days after the date of the last publication of such notice, shall be reported to the court, and upon order of the court, all such funds must be paid into the state treasury accompanied with a copy of the order, which must set forth the facts required in the notice herein provided. Such funds shall be paid out by the state treasurer to the owner thereof or his order in such manner, and upon such terms as are now or may hereafter be provided by law.

All cost and expense connected with such advertising shall be paid out of the funds the whereabouts of whose owners are unknown.

§ 577.

History: Enacted April 25, 1913, Stats. and Amdts. 1913, p. 92; amended April 21, 1915, Stats. and Amdts. 1915, p. 107; April 25, 1917, Stats. and Amdts. 1917, p. 203. In effect July 27, 1917.

An order dis1. Judgment, what is. charging an attachment is not a judgment. -Crews v. Mayo, 165 Cal. 493, 132 Pac. 1032.

§ 580.

1. Relief to be awarded plaintiff—Construction of section.-This section regulates the granting of a judgment upon default; it limits the relief which may be awarded against a defendant who does not appear, and that is its sole purpose.-Cassinella v. Allen, 168 Cal. 677, 144 Pac. 746.

2. That a court of equity will give relief by way of money damages where, for any reason the equitable relief sought can not be granted is applicable only to where the relief granted is not inconsistent with the outside the issues.complaint and not Simmons v. Simmons, 166 Cal. 438, 137 Pac. 20.

3. Interest on judgment.-In entering a necessary judgment it is not to declare it therein that it shall bear interest, as bears interest at the rate of seven per cent per annum from its date by force of the law and not by reason of any declaration to it may contain that effect.-Glenn Rice, 53 Cal. Dec. 103, 162 Pac. 1020.

V.

As to interest on award to be entered in judgment, see ante, C. C. pt., § 1920.

§ 581.

DISMISSAL AND NONSUIT.

1-4. Construction of section-Subdivision 1. 5-7. Directing verdict (subd. 5). 8-20. Nonsuit and motion therefor (subd. 5).

1. Construction of section-Subdivision 1. -The costs referred to as being required to be paid by the plaintiff when he files his dismissal with the clerk are only the costs 1917 Sup.-35.

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of entering the order of dismissal. But on the other hand, the dismissal so made does not interfere with the right of the defendant to have a judgment following it entered and this would secure to him the expenses incurred which were in their nature proper costs.-Spinks v. Superior Court, 26 Cal. App. 793, 148 Pac. 798.

2. None of the orders or judgments provided to be made by this section need be entered in the judgment-book at all or appear in any record except that containing the minutes of the court. Commins V. Guaranty Oil Co., 29 Cal. App. 139, 154 Pac. 882.

3. An order granting a motion for a nonsuit, entered only in the minutes of the court and not followed by a formal judgment of dismissal, is an appealable order under section 581 of the Code of Civil Procedure.-Commins v. Guaranty Oil Co., 29 Cal. App. 139, 154 Pac. 882.

4. This subdivision does not apply to dismissal of condemnation proceedings, these being governed by section 1255a. Silver Lake Power & Irr. Co. v. City of Los Angeles, 32 Cal. App. 123, 162 Pac. 432. 5. Directing verdict (subd. 5).-The right of a court to direct a verdict is, touching the condition of the evidence, the same as the right of the court to grant a nonsuit.Estate of Caspar, 172 Cal. 147, 155 Pac. 631. 6. The court is authorized to take the case from the jury when, upon the whole evidence, were a verdict returned in favor of the plaintiff, the court would feel im-' pelled to set it aside as unsupported by the evidence.-Gaskill v. Pacific Elec. R. Co., 30 Cal. App. 593, 159 Pac. 200.

7. Where the court directs the verdict of the jury it is immaterial whether the jurors with the court or not.-Gaskill

agree

V.

Pacific Elec. R. Co., 30 Cal. App. 593, 159 Pac. 200.

8. Nonsult and motion therefor (subd. 5). -The motion for nonsuit admits the truth of plaintiff's evidence, and every inference of fact that can be legitimately drawn therefrom, and upon such motion the evidence should be interpreted most strongly against the defendant.-O'Connor v. Mennie, 169 Cal. 217, 146 Pac. 674.

9. In order to justify the submission of any question of fact to a jury, the proof must be sufficient to raise more than a mere conjecture or surmise that the fact is as alleged. It must be such that a rational, well-constructed mind can reasonably draw from it the conclusion that the fact exists, and, when the evidence is not sufficient to justify such an inference, the court may properly refuse to submit the question to the jury.-O'Connor v. Mennie, 169 Cal. 217, 146 Pac. 674.

10. A judgment of nonsuit in an action by a vendee to recover money which he has paid under his contract of purchase will be presumed to have been based on his failure to prove a cause of action.-McGibbon v. Schmidt, 172 Cal. 70, 155 Pac. 460.

11.

The court may grant a nonsuit only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given; if in such a case no motion for nonsuit has been made and the issues have been turned over to the consideration of the jury, and that jury has rendered a verdict in favor of plaintiff, the verdict being supported by any substantial evidence, it becomes the imperative duty of the court to set it aside, but when, and only when, the evidence of the proponent is thus insufficient the court may and should grant a nonsuit, and may and should on motion direct a verdict.-Estate of Caspar, 172 Cal. 147, 155 Pac. 631.

12. In passing upon a motion for a nonsuit, the evidence must be interpreted most strongly against the defendant, and every favorable inference of fact that can be legitimately drawn in support of the action should be made.--Lupton v. Domestic Utilities Mfg. Co., 173 Cal. 415, 160 Pac. 241.

13. In deciding a motion for a nonsuit every favorable inference fairly deducible from the evidence produced must be considered as facts proved in favor of the plaintiff. If there is any substantial evidence tending to prove all the facts in issue constituting the plaintiff's case, he is entitled to have the case go to the jury for a verdict on the merits.-Lassen v. Southern Pac. Co., 173 Cal. 71, 159 Pac. 143.

14. A motion for a nonsuit may not be granted if there is any evidence tending to sustain the plaintiff's cause of action.-Donovan v. Kemper, 26 Cal. App. 352, 146 Pac. 1044.

15. A motion for a nonsuit "on the ground and for the reason plaintiff had not produced sufficient evidence to warrant the court in submitting the same to the jury" is sufficient as specifying the particular ground of the weakness of the adversary's case. Johnson v. Southern Cal. Edison Co., 27 Cal. App. 425, 150 Pac. 656.

16. On a motion for nonsuit every favorable inference, fairly deducible, and every favorable presumption fairly arising from the evidence produced must be considered as facts in favor of the contestants. Where the evidence is fairly susceptible of two constructions or if any of several inferences may reasonably be made, the court must take the view most favorable to the contestants. All the evidence in favor of the contestants must be taken as true and if contradictory evidence has been given it must be disregarded. If there is any substantial evidence tending to prove in favor of contestants the facts necessary to make out their case they are entitled to have the case go to the jury for a verdict on the merits.-Boyle v. Coast Imp. Co., 27 Cal. App. 714, 151 Pac. 25.

17. A formal judgment of dismissal need not follow the order or judgment of nonsuit, for the judgment of nonsuit in itself constitutes a dismissal of the action.-Commins v. Guaranty Oil Co., 29 Cal. App. 139, 154 Pac. 882.

18. Where the trial court has, at the conclusion of the plaintiff's case, denied defendants' motion for a nonsuit, the invalidity of the contract and the facts adduced by the plaintiff in support of his plea of estoppel at that time appearing, it is not error for it subsequently to grant the motion of the defendants to direct the jury to return a verdict in their favor.-Sellers v. Solway Land Co., 31 Cal. App. 259, 160 Pac. 175.

19. It is discretionary with the court to allow evidence to meet the objections made by the motion for a nonsuit on the ground of lack of proof on certain matters.-Fee v. McPhee, 31 Cal. App. 295, 160 Pac. 397.

20. Where a motion for a nonsuit is made and denied, and evidence is thereafter admitted on the part of both parties, the order will not be disturbed if the evidence supports the verdict.-Silva v. Northern Cal. Power Co., 32 Cal. App. 139, 162 Pac. 412.

§ 581a.

1. Power of court to dismiss action.-The trial court has power to dismiss for undue delay in issuing or serving summons even though the delay has been for a shorter period than that which gives the defendant an absolute right.-Mori v. Mori, 171 Cal. 79, 151 Pac. 1136.

2. In an action to cancel a lease which had some nine years to run when the complaint was filed, no abuse of discretion is committed in dismissing the action for a delay of something over twenty-one months in serving the summons, where the sole reason for the delay was the pendency of a

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§ 582.

1. Judgment on merits-Construction of this section section. The amendment to must not be construed as a repeal of section 583; manifestly it was not so intended by the legislature but was rendered necessary by the shifting of the provisions contained in subdivision 7 of section 581 to section 581a. Johnston v. Baker, 167 Cal. 260, 139 Pac. 86.

2. Judgment on pleading.-In an action brought to recover an alleged balance due the on a promissory note, judgment on pleadings is rightly entered, where the answer admits the allegations of the complaint as to the execution of the note, and then denies that the money had been paid thereon and alleges that the obligation of the note had been extinguished by the execution of a stipulation made in another answer, which stipulation is set out in full, and it appears therefrom that the defendant was in default under the stipulation at the time of the comof the action. Scheeline mencement Moshier, 172 Cal. 565, 158 Pac. 222.

§ 583.

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DISMISSAL OF ACTION.

1-4. Construction of section. 5-10. Where an answer is filed.

11. -Filing cross-complaint, effect of. 12, 13. Where no answer has been filed.

V.

1. Construction of section.-This section evinces an intent to cover the entire subject of dismissals for failure to bring an action to trial after answer filed, and to fix: (1) A minimum period within which mere delay is not to be deemed sufficient cause; interval of ensuing (2) An immediately three years, during which the court, in its discretion, may adjudge it sufficient, and (3) A maximum period of five years, upon the expiration of which the delay is declared to be sufficient as a matter of law and the dismissal is made mandatory.-Romero v. Snyder, 167 Cal. 216, 138 Pac. 1002. 2. This section does not apply to actions pending in the superior court on appeal from the justice's court.-Pistolesi v. Superior Court, 26 Cal. App. 403, 147 Pac. 104. 3. This section does not apply to actions on appeal pending in the superior court from the justice's court, and while the court possesses inherent power in its discretion to make an order of dismissal it can not be compelled to do so.-Long v. Superior Court, 31 Cal. App. 34, 159 Pac. 734.

4. Where a cause had been at issue over seventeen years it is properly dismissed for failure to prosecute, and a stipulation that the action be dropped from the calendar to be reset on motion made sixteen years before dismissal does not take the case out of the operation of this section.-Central Pac. R. Co. v. Riley, 31 Cal. App. 394, 160 Pac. 844.

5. cases Where an answer is filed.-In where an answer has been filed the court should not dismiss the action for want of prosecution unless the plaintiff has delayed for two years thereafter to bring the action to trial.-Romero v. Snyder, 167 Cal. 216, 138 Pac. 1002.

6. The defendant's right to a dismissal of an action to quiet title for failure to bring it to trial within five years after answers were filed is not affected by the mere fact that the answers set up defendants' own alleged title and asked that they be adjudged the owners.-Larkin v. Superior Court, 171 Cal. 719, 154 Pac. 841.

7. A motion to dismiss an action not brought to trial within five years after answer filed is not affected by the death of the original defendant administrator and the failure to appoint and substitute a new administrator for several months thereafter, where the death occurred after the expiration of the five-year period.-Larkin v. Superior Court, 171 Cal. 719, 154 Pac. 841.

8. The dismissal of an action for failure to bring to trial within five years after answer filed, except where the parties have stipulated in writing that the time may be extended, is made mandatory by section 583 of the Code of Civil Procedure.-Larkin v. Superior Court, 171 Cal. 719, 154 Pac. 841.

9. It is not essential that the stipulation in writing mentioned in such section be signed personally by "the parties"; a stipulation by counsel is sufficient.-Larkin v. Superior Court, 171 Cal. 719, 154 Pac. 841.

10. A stipulation made in open court and entered in the minutes fixing as the time for trial a date within one year from the filing of the answer, and two stipulations a date continuing the trial, the later to within fifteen months after the filing of the answer, are not the stipulations extending the five-year period contemplated by such section.-Larkin v. Superior Court, 171 Cal. 719, 154 Pac. 841.

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11. -Filing cross-complaint, effect of.Jurisdiction of an action is not lost by reason of the failure to prosecute within five years after answer to the complaint where the delay is attributable in part to the action of the defendants in filing a complaint when the plaintiff endeavored to have the cause placed on the calendar for trial within two and a half years after answer to the original complaint had been filed. Hickman v. Lynch, 27 Cal. App. 354, 149 Pac. 997.

12. Where no answer has been filed.Where no answer has been filed the court has inherent power to dismiss an action for want of prosecution. The limitations on the court's power to dismiss under this section

apply to the particular instance of delay in bringing the case to trial after answer has been filed.-Overaa v. Keeney, 169 Cal. 628, 147 Pac. 466.

13. It is not an abuse of discretion to dismiss an action for damages for personal injuries for failure to prosecute with reasonable diligence, where the complaint was not filed until eleven days before the expiration of the period prescribed for the commencement of the action, and the summons not taken out until three weeks before the limitation of the time for its issuance, and not served until seven months before the expiration of the time allowed by law, both parties living in the same county and having frequent meetings, notwithstanding such failure was due to the plaintiff's crippled condition and his consequent inability to earn money to proceed with the litigation.-Overaa v. Keeney, 169 Cal. 628, 147 Pac. 466.

§ 585.

DEFAULT JUDGMENT.

1, 2. Construction of section-Subdivision 1. 3, 4. Subdivision 2.

5. Default judgment-When authorized.

1. Construction of section-Subdivision 1. -The clerk can not enter a default unless no answer has been filed "within the time specified in the summons or such further time as may have been granted." A default can not be entered for failure to file an answer when such answer is on file at the time the attempt is made to enter the default.-Reher v. Reed, 166 Cal. 525, Ann. Cas. 1915C 737, 137 Pac. 263.

2. In the performance of the functions devolved upon him by this subdivision the clerk acts ministerially. He exercises no judicial functions, but is only an agent by whom the judgment is written out and placed upon the record. Consequently, he must conform strictly to the provisions of the statute or his proceedings will be void. It follows that he has no authority, under this subdivision, to enter a judgment, except in cases of the kind mentioned therein. He has no such authority in an action not of the character therein described. The subdivision gives him no authority except in "actions arising upon contract for the recovery of money or damages only." There may be reason to doubt whether a crosscomplaint comes within the scope of the subdivision. It limits the authority of the clerk to cases where no answer has been filed "within the time specified in the summons, or such further time as may have been granted."-Farrar v. Steenbergh, 173 Cal. 94, 159 Pac. 707.

3. Subdivision 2.-It is not essential to the entry of a valid judgment against a defendant that its default should have been actually entered by the clerk; a valid judgment by default may be rendered by the court, though no formal default has been entered.-Crouch v. Miller, 169 Cal. 341, 146 Pac. 880.

4. Where the plaintiff has filed a verified

complaint, he is entitled to have an unverified answer stricken out on motion and a judgment by default thereupon entered, or, in the absence of an order striking the answer out, to a judgment for want of an answer.-Johnson v. Dixon Farms Co., 29 Cal. App. 52, 155 Pac. 134.

5. Default judgment -When authorized. -A default judgment is authorized against a partnership defendant in an action, notwithstanding the return of service of summons fails affirmatively to declare that the individual defendant served was a member of the copartnership and served in that capacity, where the complaint, a copy of which was served with the summons, shows that he was sued individually, and alleges that he was a member of the partnership joined as defendant under the firm name.Colquhoun v. Pack, 28 Cal. App. 319, 152 Pac.

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§ 588.

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Where

1. Issue raised by pleadings. such an action is tried upon the theory that no issue was raised by the pleadings as to the sufficiency and proper execution by the parties of the plans and specifications, it can not be urged for the first time on appeal that the court erred in the receipt of evidence and in its finding that the building was constructed and completed in accordance with such plans and specifications.— Cavanaugh v. Carpenter, 28 Cal. App. 276, 152 Pac. 57.

2. An allegation in the answer, as one of the defendant's two separate defenses to the action, that before the plaintiff was ejected from the car he "wilfully and without provocation assaulted, struck and beat the conductor," and that the injuries received were sustained during the assault upon the conductor and were inflicted in reasonable and necessary self-defense, and without the use of excessive force in resisting that assault, does not raise the issue as to whether the conductor employed unnecessary force in the ejectment, and no finding thereon is required. The question under such allegation is as to whether or not the conductor inflicted the injuries in the reasonable and necessary defense of his person and without excessive force in that behalf.-Eylenfeldt v. United Railroads, 28 Cal. App. 56, 151 Pac. 293.

§ 592.

ISSUES OF LAW AND FACT-TRIAL OF. 1, 2. Construction of section. 3, 4. Issues triable by court. 5. Issues triable by jury.

1. Construction of section.-This section limits the right to a jury trial to common law actions. A condemnation suit is a special proceeding and not within the classes enumerated.-Vallejo & Northern R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 Pac. 238. 2. The amendment of 1874 to section 592 of the Code of Civil Procedure changed the effect of the section as applied to condemnation suits, so that a jury trial is impera

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