페이지 이미지
PDF
ePub

а

6. A receiver is an officer of the court;

8 568. his appointment is provisional. He is ap

POWERS OF RECEIVER. pointed in behalf of all parties, and not of the complainant or of the defendant only.

1. Character of office of receiver. He is appointed for the benefit of all par

2-4. As to right of receiver to appeal. ties who may establish rights in the cause.

5-7. Receiver's certificates. The money in his hands is in custodia legis

1. Character of office of receiver.-A refor whoever can make out a title to it. It

ceiver is an indifferent person between paris the court itself which has the care of the

ties, appointed by the court to receive the property in dispute. The receiver is but

rents, issues or profits of land, or other the creature of the court; he has no powers thing in question in this court, pending the except such as are conferred upon him by

suit, where it does not seem reasonable to the order of his appointment and the course the court that either party should do it.and practice of the court.-Spring Valley

Spring Valley Water Co. v. San Francisco, Water Co. v. San Francisco, 225 Fed. 728. 225 Fed. 728.

2. $ 565.

As to right of receiver to appeal.A

receiver has no interest or concern and 1. Receivers for corporations-Construc

hence no right of appeal from the portion tion of section.—The provisions of this sec- of such an order which directs him to pay tion are not rendered inapplicable to

over the money in his hands in a particular case where the corporation has been dis

way.-Edwards v. Western Land & Power solved for a considerable time, because the

Co., 27 Cal. App. 724, 151 Pac. 16. use of the words therein "upon the dissolu

3. No appeal lies from an order dischargtion," as such phrase means "after disso

ing a receiver for the reason that the code lution" and is not limited to any particular

does not provide for such an appeal, and lapse of time. Henderson v. Palmer Union

for the additional reason that a receiver, Oil Co., 29 Cal. App. 451, 156 Pac. 65.

being the mere servant or agent of the 2. The provisions of this section and sec

court, has no such interest in the action as tion 400 of the Civil Code were not intended

would entitle him to appeal from an order to apply in case of dissolution of a corpora

for his

discharge.-Edwards Western tion by and acco ling to any particular

Land & Power Co., 27 Cal. App. 724, 151 method.—Henderson v. Palmer Union Oil

Pac. 16. Co., 29 Cal. App. 451, 156 Pac. 65.

A receiver, however, has the right of 3. Jurisdiction to appoint.–Upon the dis

appeal from such an order in so far as it solution of a corporation by expiration of

undertakes to settle his accounts and fix its charter the jurisdiction to appoint a re

his compensation; it is held herein, howceiver is limited to the particular superior

ever, that the appellant has no cause of court of the county where the corporation

complaint in such regard.— Edwards carries on its business or has its principal

Western Land & Power Co., 27 Cal. App. 724, place of business. Henderson v. Palmer

151 Pac. 16. Union Oil Co., 29 Cal. App. 451, 156 Pac. 65.

5. Receiver's certificates.-While it is the 8 566.

general rule that the court in cases of pri

vate corporations will not, as against the 1. Undertaking of receiver - Appeal.

objection of a minority of the bondholders, The undertaking required by this section is

issue receiver's certificates and make them indispensable, and the undertaking of sec

a prior lien upon the mortgaged property, tion 567 can not substitute therefor.-Stoff

for the purpose of procuring funds to conv. Erken, 172 Cal. 481, 156 Pac. 1033.

tinue the management and operation of the 2. Upon appeal from such an order, a cer

business, there can be no question of the tified copy of the undertaking in the form

right of the court to give priority to certirequired by section 566 of the Code of Civil

ficates issued to enable the receiver to carry Procedure, filed in the appellate court after

out the primary object of his appointment, the filing of the transcript, can not be con

viz., the care and preservation of the propsidered, when the bill of exceptions does

erty.-Title Ins. & Trust Co. v. California not contain such undertaking or any order

Devel. Co., 171 Cal. 174, 152 Pac. 564. referring to or providing for it or fixing its

6. Certificates issued by the receiver for amount.-Stoff v. Erken, 172 Cal. 481, 156

the preservation of the property are not to Pac. 1033.

be denied recognition because of the finding

that a bondholder purchased some of the $ 567.

bonds of the foreclosed corporation and 1. Filing new undertaking cures defec- contrived to have such corporation default tive one.-Where a motion to discharge a in the payment of interest, to the end that receiver is made on the sole ground that a foreclosure suit and that receiver's certifithe undertakings are defective, and before cates might be issued and sold to such the court makes its order on the motion, bondholder, thus enabling it to defeat the the filing of new undertakings in proper claims of the bondholders and purchase the form is made, the defects in the original property itself, where it is not found that undertakings are cured, so as to make the the plaintiff had any knowledge of such appointment valid at least from the time fraud. -Title Ins. & Trust Co. v. California of the filing of the new undertakings.- Devel. Co., 171 Cal. 174, 152 Pac. 564. Title Ins. & Trust Co. v. California Devel. 7. Such certificates are not to be denied Co., 171 Cal. 174, 152 Pac. 564.

recognition because the expenditures real

V.

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 Ing. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 564.

8 570. 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.

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. $ 577.

of entering the order of dismissal. But on

the other hand, the dismissal so made does 1. Judgment, what is. — An order dis

not interfere with the right of the defendcharging an attachment is not a judgment.

ant to have a judgment following it en-Crews v. Mayo, 165 Cal. 493, 132 Pac. 1032.

tered and this would

secure to him the 3 580.

expenses incurred which were in their na

ture proper costs.-Spinks v. Superior Court, 1. Relief to be awarded plaintiff-Con

26 Cal. App. 793, 148 Pac. 798. struction of section.—This section regulates

2. None of the orders or judgments prothe granting of a judgment upon default;

vided to be made by this section need be it limits the relief which may be awarded

entered in the judgment-book at all or apagainst a defendant who does not appear,

pear in any record except that containing and that is its sole purpose.-Cassinella v.

the minutes of the court.-Commins V. Allen, 168 Cal. 677, 144 Pac. 746.

Guaranty Oil Co., 29 Cal. App. 139, 154 Pac. 2. That a court of equity will give relief

882. by way of money damages where, for any

3. An order granting a motion for a nonreason the equitable relief sought can not

suit, entered only in the minutes of the be granted is applicable only to where the

court and not followed by a formal judgrelief granted is not inconsistent with the

ment of dismissal, is an appealable order complaint and not outside the issues.

under section 581 of the Code of Civil ProSimmons v. Simmons, 166 Cal. 438,

137

cedure.--Commins v. Guaranty Oil Co., 29 Pac. 20.

Cal. App. 139, 154 Pac. 882. 3. Interest on judgment.-In entering a

4. This subdivision does not apply to disjudgment it is not necessary to declare

missal of condemnation proceedings, these therein that it shall bear interest, as it bears interest at the rate of seven per cent

being governed by section 1255a.-Silver

Lake Power & Irr. Co. v. City of Los Anper annum from its date by force of the law and not by reason of any declaration

geles, 32 Cal. App. 123, 162 Pac. 432.

5. it may contain to that effect.—Glenn v.

Directing verdict (subd. 5)

.The right Rice, 53 Cal. Dec. 103, 162 Pac. 1020.

of a court to direct a verdict is, touching As to interest on a ward to be entered in

the condition of the evidence, the same as judgment, see ante, C. C. pt., § 1920.

the right of the court to grant a nonsuit.

Estate of Caspar, 172 Cal. 147, 155 Pac. 631. § 581.

6. The court is authorized to take the DISMISSAL AND NONSUIT.

case from the jury when, upon the whole

evidence, were a verdict returned in favor 1-4. Construction of section-Subdivision 1.

of the plaintiff, the court would feel im5-7. Directing verdict (subd. 5).

pelled to set it aside as unsupported by the 8-20. Nonsuit and motion therefor (subd. 5).

evidence.-Gaskill v. Pacific Elec. R. Co., 30 1. Construction of section-Subdivision 1. Cal. App. 593, 159 Pac. 200. -The costs referred to as being required to 7. Where the court directs the verdict of be paid by the plaintiff when he files his the jury it is immaterial whether the jurors dismissal with the clerk are only the costs

agree with the court or not.-Gaskill v. 20. Where a motion for a nonsuit is made 12. In passing upon a motion for a non

Pacific Elec. R. Co., 30 Cal. App. 593, 159 15. A motion for a nonsuit "on the Pac. 200.

ground and for the reason plaintiff had not 8. Nonsult and motion therefor (subd. 5). produced sufficient evidence to warrant the —The motion for nonsuit admits the truth court in submitting the same to the jury" of plaintiff's evidence, and every inference is sufficient as specifying the particular of fact that can be legitimately drawn ground of the weakness of the adversary's therefrom, and upon such motion the evi- case.—Johnson v. Southern Cal. Edison Co., dence should be interpreted most strongly 27 Cal. App. 425, 150 Pac. 656. against the defendant.-O'Connor v. Mennie, 16. On a motion for nonsuit every favor169 Cal. 217, 146 Pac. 674.

able inference, fairly deducible, and every 9. In order to justify the submission of favorable presumption fairly arising from any question of fact to a jury, the proof the evidence produced must be considered must be sufficient to raise more than a mere as facts in favor of the contestants. Where conjecture or surmise that the fact is as the evidence is fairly susceptible of two alleged. It must be such that a rational, constructions or if any of several inferences well-constructed mind can reasonably draw may reasonably be made, the court must from it the conclusion that the fact exists, take the view most favorable to the conand, when the evidence is not sufficient to testants. All the evidence in favor of the justify such an inference, the court may contestants must be taken as true and if properly refuse to submit the question to contradictory evidence has been given it the jury.-O'Connor v. Mennie, 169 Cal. 217, must be disregarded. If there is any sub146 Pac. 674.

stantial evidence tending to prove in favor 10. A judgment of nonsuit in an action of contestants the facts necessary to make by a vendee to recover money which he out their case they are entitled to have the has paid under his contract of purchase will case go to the jury for a verdict on the be presumed to have been based on his fail- merits.—Boyle v. Coast Imp. Co., 27 Cal. ure to prove a cause of action.--McGibbon App. 714, 151 Pac. 26. v. Schmidt, 172 Cal. 70, 155 Pac. 460.

17. A formal judgment of dismissal need 11. The court may grant a nonsuit only not follow the order or judgment of nonwhen, disregarding conflicting evidence suit, for the judgment of nonsuit in itself and giving to plaintiff's evidence all the constitutes a dismissal of the action.-Comvalue to which it is legally entitled, herein mins v. Guaranty Oil Co., 29 Cal. App. 139, indulging in every legitimate inference 154 Pac. 882. which may be drawn from that evidence, 18. Where the trial court has, at the conthe result is a determination that there is clusion of the plaintiff's case, denied deno evidence of sufficient substantiality to fendants' motion for a nonsuit, the invalidsupport a verdict in favor of plaintiff if ity of the contract and the facts adduced such a verdict were given; if in such a case by the plaintiff in support of his plea of no motion for nonsuit has been made and

estoppel at that time appearing, it is not the issues have been turned over to the error for it subsequently to grant the moconsideration of the jury, and that jury tion of the defendants to direct the jury has rendered a verdict in favor of plaintiff, to return a verdict in their favor.-Sellers the verdict being supported by any sub- v. Solway Land Co., 31 Cal. App. 259, 160 stantial evidence, it becomes the imperative Pac. 175. duty of the court to set it aside, but when,

19. It is discretionary with the court to and only when, the evidence of the pro

allow evidence to meet the objections made ponent is thus insufficient the court may

by the motion for a nonsuit on the ground and should grant a nonsuit, and may and of lack of proof on certain matters.-Fee v. should on motion direct a verdict.-Estate

McPhee, 31 Cal. App. 295, 160 Pac. 397. of Caspar, 172 Cal. 147, 155 Pac. 631.

and denied, and evidence is thereafter adsuit, the evidence must be interpreted most

mitted on the part of both parties, the order strongly against the defendant, and every

will not be disturbed if the evidence supfavorable inference of fact that can be le

ports the verdict.—Silva v. Northern Cal. gitimately drawn in support of the action

Power Co., 32 Cal. App. 139, 162 Pac. 412. should be made.--Lupton v. Domestic Utilities Mfg. Co., 173 Cal. 415, 160 Pac. 241.

$ 581a. 13. In deciding a motion for a nonsuit every favorable inference fairly deducible 1. Power of court to dismiss action. The from the evidence produced must be con- trial court has power to dismiss for undue sidered as facts proved in favor of the delay in issuing or serving summons even plaintiff. If there is any substantial evi- though the delay has been for a shorter dence tending to prove all the facts in issue period than that which gives the defendant constituting the plaintiff's case, he is en- an absolute right.-Mori v. Mori, 171 Cal. 79, titled to have the case go to the jury for a 151 Pac. 1136. verdict on the merits.-Lassen v. Southern 2. In an action to cancel a lease which Pac. Co., 173 Cal. 71, 159 Pac. 143.

had some nine years to run when the com14. A motion for a nonsuit may not be plaint was filed, no abuse of discretion is granted if there is any evidence tending to committed in dismissing the action for a sustain the plaintiff's cause of action.-Don- delay of something over twenty-one months ovan v. Kemper, 26 Cal. App. 352, 146 Pac. in serving the summons, where the sole 1044.

reason for the delay was the pendency of a 10. A stipulation made in open court and

criminal proceeding against one of the de- 4. Where a cause had been at issue over fendants and a desire not to prejudice him seventeen years it is properly dismissed for in his defense thereto by such service, but failure to prosecute, and a stipulation that no explanation is given why the summons the action be dropped from the calendar to was not served before or after the termin- be reset on motion made sixteen years beation of such proceeding, which in the fore dismissal does not take the case out of former case consisted of four months and the operation of this section.–Central Pac. in the latter of seven months, and it is R. Co. v. Riley, 31 Cal. App. 394, 160 Pac. further made to appear that the defendants

844. had made valuable improvements upon the

Where an answer is filed.In cases leased land.-Mori v. Mori, 171 Cal. 79, 151 where an answer has been filed the court Pac. 1136.

should not dismiss the action for want of

prosecution unless the plaintiff has delayed 8 582.

for two years thereafter to bring the action

to trial.-Romero v. Snyder, 167 Cal. 216, 138 1. Judgment on merits-Construction of

Pac. 1002. section.-The amendment to this section

6. must not be construed as a repeal of section

The defendant's right to a dismissal 583; manifestly it was not so intended by

of an action to quiet title for failure to

bring it to trial within five years after the legislature but was rendered necessary

answers by the shifting of the provisions contained

were filed is not affected by the in subdivision 7 of section 581 to section

mere fact that the answers set up defend581a.-Johnston v. Baker, 167 Cal. 260, 139

ants' own alleged title and asked that they

be adjudged the owners.-Larkin v. Superior Pac. 86.

Court, 171 Cal. 719, 154 Pac. 841. 2. Judgment on pleading.-In an action

7. A motion to dismiss an action not brought to recover an alleged balance due

brought to trial within five years after on a promissory note, judgment on the

answer filed is not affected by the death of pleadings is rightly entered, where the an

the original defendant administrator and swer admits the allegations of the complaint

the failure to appoint and substitute a new as to the execution of the note, and then

administrator for several months thereafter, denies that the money had been paid thereon

where the death occurred after the expiraand alleges that the obligation of the note

tion of the five-year period.-Larkin v. Suhad been extinguished by the execution of

perior Court, 171 Cal. 719, 154 Pac, 841. a stipulation made in another answer, which

8. The dismissal of an action for failure stipulation is set out in full, and it appears

to bring to trial within five years after therefrom that the defendant was in default under the stipulation at the time of the com

answer filed, except where the parties have

stipulated in writing that the time may be mencement of the action. — Scheeline V.

extended, is made mandatory by section 583 Moshier, 172 Cal. 565, 158 Pac. 222.

of the Code of Civil Procedure.-Larkin v.

Superior Court, 171 Cal. 719, 154 Pac. 841. 8 583.

9. It is not essential that the stipulation DISMISSAL OF ACTION.

in writing mentioned in such section be 1-4. Construction of section.

signed personally by "the parties"; a stipu5-10. Where an answer is filed.

lation by counsel is sufficient.—Larkin v. 11. -Filing cross-complaint, effect of.

Superior Court, 171 Cal. 719, 154 Pac. 841. 12, 13. Where no answer has been filed.

entered in the minutes fixing as the time 1. Construction of section. This section

for trial a date within one year from the evinces an intent to cover the entire sub

filing of the answer, and two stipulations ject of dismissals for failure to bring an

continuing the trial, the later to a date action to trial after answer filed, and to fix:

within fifteen months after the filing of (1) A minimum period within which mere

the answer, are not the stipulations extenddelay is not to be deemed sufficient cause;

ing the five-year period contemplated by (2) An immediately ensuing interval of

such section.--Larkin v. Superior Court, 171 three years, during which the court, in it

Cal. 719, 154 Pac. 841. discretion, may adjudge it sufficient, and

11. -Filing cross-complaint, effect of.(3) A maximum period of five years, upon

Jurisdiction of an action is not lost by reathe expiration of which the delay is de

son of the failure to prosecute within five clared to be sufficient as a matter of law

years after answer to the complaint where and the dismissal is made mandatory.-Ro

the delay is attributable in part to the acmero v. Snyder, 167 Cal, 216, 138 Pac. 1002.

tion of the defendants in filing a cross2. This section does not apply to actions

complaint when the plaintiff endeavored to pending in the superior court on appeal

have the cause placed on the calendar for from the justice's court.-Pistolesi v. Su- trial within two and a half years after perior Court, 26 Cal. App. 403, 147 Pac. 104.

answer to the original complaint had been 3. This section does not apply to actions filed.-Hickman v. Lynch, 27 Cal. App. 354, pending in the superior court on appeal 149 Pac. 997. from the justice's court, and while the court 12. Where no answer has been filed. possesses inherent power in its discretion Where no answer has been filed the court to make an order of dismissal it can not has inherent power to dismiss an action for be compelled to do so.—Long v. Superior want of prosecution. The limitations on the Court, 31 Cal. App. 34, 159 Pac. 734.

court's power to dismiss under this section ISSUES OF LAW AND FACT-TRIAL OF. clerk to cases where no answer has been filed "within the time specified in the sum

one

apply to the particular instance of delay in complaint, he is entitled to have an unbringing the case to trial after answer has verified answer stricken out on motion and been filed.Overaa v. Keeney, 169 Cal. 628, a judgment by default thereupon entered, 147 Pac. 466.

or, in the absence of an order striking the 13. It is not an abuse of discretion to answer out, to a judgment for want of an dismiss an action for damages for personal answer.—Johnson V. Dixon Farms Co., 29 injuries for failure to prosecute with reas- Cal. App. 52, 155 Pac. 134. onable diligence, where the complaint was

Default judgment — When authorized. not filed until eleven days before the ex- -A default judgment is authorized against piration of the period prescribed for the a partnership defendant in an action, notcommencement of the action, and the sum- withstanding the return of service of summons not taken out until three weeks be- mons fails affirmatively to declare that the fore the limitation of the time for its individual defendant served was a member issuance, and not served until seven months of the copartnership and served in that cabefore the expiration of the time allowed by pacity, where the complaint, a copy of law, both parties living in the same county which was served with the summons, shows and having frequent meetings, notwith- that he was sued individually, and alleges standing such failure was due to the plain- that he was a member of the partnership tiff's crippled condition and his consequent joined as defendant under the firm name.inability to earn money to proceed with the Colquhoun v. Pack, 28 Cal. App. 319, 152 Pac. litigation.-Overaa v. Keeney, 169 Cal. 628, 319. 147 Pac. 466.

$ 588. 8 585.

1. Issue raised by pleadings. — Where DEFAULT JUDGMENT.

such an action is tried upon the theory that 1, 2. Construction of section-Subdivision 1.

no issue was raised by the pleadings as to 3, 4. -Subdivision 2.

the sufficiency and proper execution by the 5. Default judgment—When authorized.

parties of the plans and specifications, it

can not be urged for the first time on appeal 1. Construction of section-Subdivision 1.

that the court erred in the receipt of evi—The clerk can not enter a default unless

dence and in its finding that the building no answer has been filed "within the time

was constructed and completed in accordspecified in the summons or such further

ance with such plans and specifications.time as may have been granted." A default

Cavanaugh v. Carpenter, 28 Cal. App. 276, can not be entered for failure to file an

152 Pac. 57. answer when such answer is on file at the

2. An allegation in the answer, as time the attempt is made to enter the de

of the defendant's two separate defenses to fault.-Reher v. Reed, 166 Cal. 525, Ann. Cas.

the action, that before the plaintiff was 1915C 737, 137 Pac. 263.

ejected from the car he "wilfully and with2. In the performance of the functions out provocation assaulted, struck and beat devolved upon him by this subdivision the the conductor," and that the injuries reclerk acts ministerially. He exercises no

ceived were sustained during the assault judicial functions, but is only an agent by upon the conductor and were inflicted in whom the judgment is written out and

reasonable and necessary self-defense, and placed upon the record. Consequently, he

without the use of excessive force in remust conform strictly to the provisions of sisting that assault, does not raise the issue the statute or his proceedings will be void. as to whether the conductor employed unIt follows that he has no authority, under

necessary force in the ejectment, and no this subdivision, to enter a judgment, ex

finding thereon is required. The question cept in cases of the kind mentioned therein.

under such allegation is as to whether or He has no such authority in an action not not the conductor inflicted the injuries in of the character therein described. The sub- the reasonable and necessary defense of his division gives him no authority except in person and without excessive force in that “actions arising upon contract for the re

behalf.--Eylenfeldt v. United Railroads, 28 covery of money or damages only." There

Cal. App. 56, 151 Pac. 293. may be reason to doubt whether a crosscomplaint comes within the scope of the $ 592. subdivision. It limits the authority of the

1, 2. Construction of section. mons, or such further time as may have

3, 4. Issues triable by court. been granted.”—Farrar v. Steenbergh, 173

5. Issues triable by jury. Cal. 94, 159 Pac. 707.

1. Construction of section.—This section 3. -Subdivision 2.-It is not essential to limits the right to a jury trial to common the entry of a valid judgment against a law actions. A condemnation suit is a spedefendant that its default should have been cial proceeding and not within the classes actually entered by the clerk; a valid judg- enumerated.--Vallejo & Northern R. Co. v. ment by default may be rendered by the Reed Orchard Co., 169 Cal. 545, 147 Pac. 238. court, though no formal default has been 2. The amendment of 1874 to section 592 entered.-Crouch v. Miller, 169 Cal. 341, 146 of the Code of Civil Procedure changed the Pac. 880.

effect of the section as applied to condem4. Where the plaintiff has filed a verified nation suits, so that a jury trial is impera

« 이전계속 »