Opinion
7-28-1958
Thelma E. BAUM, Plaintiff and Appellant, v. Ernest M. BAUM, Defendant and Respondent. * Civ. 23076.
Ray Howard, Los Angeles, for appellant. Benjamin P. Riskin, Los Angeles, for respondent.
Thelma E. BAUM, Plaintiff and Appellant,
v.
Ernest M. BAUM, Defendant and Respondent. *
July 28, 1958.
Rehearing Denied Aug. 11, 1958.
Hearing Granted Sept. 24, 1958.
Ray Howard, Los Angeles, for appellant.
Benjamin P. Riskin, Los Angeles, for respondent.
FOURT, Justice.
This motion is to dismiss an appeal from an order denying 'plaintiff's motion to appoint a receiver and/or order a sale of defendant's partnership interest' in a business.
The primary ground urged in support of the motion is that such an order is not appealable. Counsel has not referred us to any case which has determined the precise issue in this matter, namely the appelability of an order denying the appointment of a receiver.
Section 963 of the Code of Civil Procedure specifically provides for an appeal from an order appointing a receiver, however there is no correlative provision for an appeal from an order denying the appointment of a receiver; but provision is made for an appeal 'from any special order made after final judgment.'
The rule with reference to the test of appealability of a special order after final judgment is set forth in Hixson v. Hixson, 146 Cal.App.2d 204, 303 P.2d 607. It is stated in Mendelsohn v. Miller, 152 Cal.App.2d 281, 283, 313 P.2d 109, 110, as follows: 'Both sides rely upon Hixson v. Hixson, 146 Cal.App.2d 204, 303 P.2d 607, wherein the authorities are reviewed. They uniformily apply the test stated in Lake v. Harris, 198 Cal. 85, 89, 243 P. 417, 419: 'In order that a special order made after final judgment, as contemplated by subdivision 2 of section 963 of the Code of Civil Procedure, be appealable, such order must affect the judgment in some manner or bear some relation to it either by way of enforcing it or staying its execution.''
Under the circumstances of this case, the effect of the order denying the appointment of a receiver is to stay the execution of the judgment. The wife asserts, and it would appear from the record, that apparently there is no other property of the husband from which the judgment can be collected. In effect, therefore, a stay of the execution of the judgment in this case is tantamount to making the judgment uncollectable.
The other grounds for the motion to dismiss the appeal, namely that no relief can be given to the appellant, that the appellant's contentions are unsubstantial and that there was no showing of an abuse of discretion by the trial judge, have received our consideration. We are of the belief, under the circumstances of this case, that such matters should be determined upon their merits.
The motion to dismiss the appeal is denied.
WHITE, P. J., and LILLIE, J., concur. --------------- * Opinion vacated 335 P.2d 481.