[Civ. No. 1405. Third Appellate District.-December 11, 1915.]

JOSEPH F. BORGES, Appellant, v. E. C. HILLMAN et al., Respondents.

ACTION UPON UNDERTAKING ON APPEAL STAY OF EXECUTION OF ORDER APPOINTING RECEIVER-AFFIRMANCE OF ORDER-RES ADJUDICATA.In an action brought against the sureties upon an undertaking given to stay the execution of an order appointing a receiver pending an appeal therefrom, the affirmance of the order on appeal is res adjudicata as to the authority of the court to appoint the receiver. ID.—PLEADING PROPER PARTY PLAINTIFF.-The plaintiff in the main action, and not the receiver, is the proper party to maintain the action upon the undertaking.

ID.-TIME OF COMMENCEMENT OF ACTION.-An action upon such an undertaking is prematurely brought where at the time of its commencement the judgment in the main action has not become final by reason of the fact that the time to appeal therefrom has not expired.

ID. RECOVERY UPON UNDERTAKING COSTS ON APPEAL.-The fact that in such an action the plaintiff seeks relief for only the damage alleged to have been suffered by him from the moneys which came into the hands of the defendant in the main action pending the appeal from the order appointing the receiver, does not prevent him from maintaining an action in the proper forum upon the undertaking, in so far as it obligates the sureties to reimburse him for the costs on the appeal from the order appointing the receiver. ID. CONSTRUCTION OF UNDERTAKING.-The provision in such an undertaking, so far as it relates to the possession of the land involved and the collection of the rents, issues and profits thereof by the defendant, pending the decision on the appeal from the order appointing a receiver, "that if the said appellant does not make such payment within thirty days after the filing of the remittitur from the supreme court of the state of California, to which said appeal is taken, judgment may be entered upon the motion of the respondents, and in their favor, against the undersigned sureties for the said amount of said judgment, together with interest which may be due thereon, and the damages and costs which may be awarded against the appellant on appeal," means, in the absence of any pending appeal the disallowance of which by the appellate court would result in a judgment for any amount of money, that the sureties would not only guarantee the payment of the costs on the appeal from the order, but that, if a final judgment on the merits was eventually obtained by the plaintiff, they would indemnify him against any damage which might result to him by reason of the

fact that, pending the determination of the appeal from the order, the defendant was permitted to remain in possession of the property and to collect and retain the rent thereof.

APPEAL from a judgment of the Superior Court of Napa County. Henry C. Gesford, Judge.

The facts are stated in the opinion of the court.

Clarence N. Riggins, for Appellant.

E. L. Webber, for Respondents.

HART, J.-This action was brought by the plaintiff against the defendants, as sureties upon a bond given to effectuate a stay pending an appeal from an order appointing a receiver made in a certain action wherein the plaintiff here was plaintiff and one Ida J. Dunham was the defendant.

The court sustained the demurrer of the defendants and allowed the plaintiff ten days within which to amend the complaint. The plaintiff declined to amend, and accordingly judgment passed for the defendants.

The plaintiff brings this appeal here from said judgment.

The facts as stated in the complaint are substantially as follows: The plaintiff here instituted an action in the superior court of Napa County against said Ida J. Dunham, for the purpose of obtaining a judgment adjudging and decreeing that he (said plaintiff) was the owner of a certain tract of land, embracing approximately 170 acres, said land being specifically described in the complaint, and that said Dunham was holding the same, and had been holding said property ever since the 2d day of May, 1908, in trust, for the sole use and benefit of said plaintiff, and for an accounting of the rents and profits derived by her from said land since said date, and for judgment against her for any amount of money found by the court to be due plaintiff on account of said rents and profits derived by her from said lands."

After the filing of the complaint in said action of Borges v. Dunham, viz., on the eighteenth day of June, 1914, and at the trial of said action, but before the completion thereof, an order was made by the court before which it was pending, appointing one Malcolm Brown as receiver in said action to receive the rents, issues, and profits of the real property described 29 Cal. App.-10

in the complaint in said action, and to hold the same during the pendency of said action, subject to the order of the court, and requiring said receiver to execute an undertaking, with two or more sureties, in the sum of five hundred dollars, "to the effect that he would faithfully discharge the duties of receiver in said action, and obey the orders of the court therein.'

On the twenty-second day of June, 1914, said Malcolm Brown qualified as such receiver by taking and subscribing the required oath and executing the required undertaking, and said oath and bond were filed in the office of the county clerk on the succeeding day. Brown thereupon entered upon the discharge of his duties as said receiver, "and," so the complaint alleges, "continued therein until the giving of the bond on appeal hereinafter set out, and during the time that he was acting as said receiver, and prior to the giving of said last named bond, said Malcolm Brown collected the sum of $300.00, rents of the real property above described."

On the twenty-third day of July, 1914, said Ida J. Dunham took an appeal from the order appointing said receiver, and for the purpose of securing a stay of the execution of said order, and enabling her to collect the rents and income of and from said real property pending said appeal, and also for the purpose of obtaining an order from said court requiring said receiver to pay and turn over to her (Dunham) all moneys then in his possession and collected by him as such receiver as for rents and income of and from said property during his incumbency in that office, the defendants in this action, E. C. and H. F. Hillman, executed a bond or undertaking, which is in the following language:

"Whereas, the defendant in the above entitled action has appealed to the supreme court of the state of California, from that certain order made and entered into against said defendant in said action, in the said superior court above mentioned, in favor of plaintiff, in which said order one Malcolm Brown was appointed a receiver of the property involved in said action, with full power to collect all of the rents and income from said property, which said order was made and entered into by said court on or about the eighteenth day of June, 1914;

"Now, Therefore, in consideration of the premises and of such appeal, we, the undersigned, E. C. Hillman and II. F.

Hillman, of the said county of Napa, state of California, do hereby jointly and severally undertake and promise, on the part of the said appellant, that the said appellant will pay all damages and costs which may be awarded against her on appeal or on a dismissal thereof, not exceeding three hundred dollars, to which amount we acknowledge ourselves jointly and severally bound; and,

"Whereas, the appellant herein is desirous of collecting the rents, profits, and income from the property involved in the above entitled action, and also of retaining that which has heretofore been collected by the receiver in the above entitled cause, we, the undersigned, residents of the county of Napa, state of California, do in consideration thereof, and of the premises, jointly and severally promise and acknowledge ourselves jointly and severally bound in the sum of one thousand ($1,000.00) dollars, gold coin of the United States, that if the said order appealed from, or any part thereof be affirmed, or the appeal dismissed, or if the said appellant commit or suffer to be committed any waste thereon or in said real property involved in the above cause, that the appellant will pay in United States gold coin a reasonable amount for the value of the use and occupation of the property, together with all rents collected by said appellant during the occupancy of said premises by said appellant, and all damages and costs which may be awarded against the appellant herein upon this appeal. That if the said appellant does not make such payment within 30 days after the filing of the remittitur from the supreme court of the state of California, to which said appeal is taken, judgment may be entered upon the motion of the respondents, and in their favor, against the undersigned sureties, for the said amount of said judgment, together with the interest which may be due thereon, and the damages and costs which may be awarded against the appellant on appeal."

Upon the filing of said bond, the court made an order directing and requiring the receiver to turn over to said Dunham (the appellant in said action) all moneys in his possession as such receiver and so collected by him as rent growing out of said real property since his appointment as receiver, and further "instructing said receiver to refrain from collecting any further rents from said real property pending said appeal from said order, and the said appellant thereafter, and in consideration of the giving of said bond, collected the rents

of said real property pending the final determination of said appeal, and prior to the making and entry of the judgment in said action as hereinafter alleged, and in consequence and consideration of the giving of said bond by these defendants, the said receiver paid to said appellant the sum of $239.00 collected by him as rent of said real property since his appointment as said receiver, and the said appellant collected additional rents of said real property in the total sum, as plaintiff is informed and therefore alleges, of $600.00, making $839.00 in all."

On the eleventh day of November, 1914, the action of the plaintiff here against Ida J. Dunham having been tried, judgment was rendered and entered adjudging that, since the second day of May, 1908, said Dunham held "and is holding" the land in dispute in trust, for the sole use and benefit of the said plaintiff, and awarding to the said plaintiff against said Dunham the sum of $2,379.62, on account of rents, issues, and profits coming into her possession from said real property, said sum including "the $239.00 so paid to Ida J. Dunham by said receiver and $300.00 of the $600.00 collected by her pending said appeal from said order appointing a receiver as above alleged."

"Thereafter, and on the 29th day of December, 1914, a judgment was duly made and entered in the supreme court of the state of California in the matter of said appeal from said. order appointing said receiver, whereby said order was affirmed, and that the remittitur thereon was thereafter issued by the clerk of said supreme court, and was filed in the above entitled superior court on the first day of February, 1915."

The demurrer objected to the complaint upon the grounds of misjoinder of parties defendant, the alleged incapacity of the plaintiff to maintain this action, that the court has no jurisdiction of the persons of the defendants, nor the subject of this action, for certain specified reasons, that the complaint is uncertain in specified particulars, and that there is a nonjoinder of parties defendant in that Malcolm Brown, as receiver, "is not made a party plaintiff to this action."

Among the specific points made by the respondents in support of the judgment is that the court was without authority to appoint a receiver in the action of Borges v. Dunham, and that, therefore, the appellant cannot maintain the present action, because, as counsel states the proposition, "the order ap