Sweins v. Superior Court

MATTS WERNER SWEINS, Petitioner, v. THE SUPERIOR COURT OF MONTEREY COUNTY et al., Respondents.

COUNSEL

Thacher, Jones & Casey for Petitioners.

H. W. Hutton for Respondent.

OPINION

The Court.

An alternative writ of prohibition was issued upon the petitioner's application showing that, in an action foreclosing a chattel mortgage, the respondents made an ex parte order appointing a receiver without requiring the applicants for such order to give an undertaking.

Section 566 of the Code of Civil Procedure provides that: "If a receiver is appointed upon an ex parte application, the court, before making the order, must require from the applicant an undertaking ..."

[1] The provisions of that section are mandatory (22 Cal.Jur., p. 468) and the order was therefore void. (Westphal v. Superior Court, 120 Cal. App. 263, 264 [7 PaCal.2d 711], where other authorities to the same effect are cited.)

Let a peremptory writ issue as prayed. [16 Cal. App. 2d 337]