Johnson v. McCaughan, Carter & Scharrer
Decision Date | 15 September 1983 |
Docket Number | No. 82CA1261,82CA1261 |
Citation | 672 P.2d 221 |
Court | Colorado Court of Appeals |
Parties | Elden R. JOHNSON, Plaintiff-Appellee, v. McCAUGHAN, CARTER & SCHARRER, a Colorado general partnership; Ronald L. McCaughan, individually; James Carter, individually; Robert J. Scharrer, individually; Grant Street Associates Limited, a Washington limited partnership; Grant Street Associates Limited, a California limited partnership; James E. Garland, individually; Booker Investments Co., Defendants, and Jacaranda Associates, Limited, a California limited partnership, Defendant- Appellant. . III |
Stephen W. Miller, Golden, for plaintiff-appellee.
Dailey, Goodwin & O'Leary, P.C., Clive A. O'Leary, Aurora, for defendant-appellant.
Jacaranda Associates, Ltd., appeals an order appointing a receiver for certain rental property in which Jacaranda allegedly has an interest. We remand with directions to vacate the order.
Elden R. Johnson filed a verified petition for appointment of receiver in the district court alleging that he held a deed of trust on rental property in Adams County securing a loan in the amount of $750,000. The petition alleged that the deed of trust was in default. The deed of trust attached as an exhibit to the petition provided for the ex parte appointment of a receiver in the event of a default.
The petition was presented ex parte to the court, which found that emergency circumstances required the appointment of a receiver. The court therefore appointed a receiver for the property. No complaint had been filed nor summons issued and served. No C.R.C.P. 120 proceeding had been commenced nor notice issued and served in accordance therewith. Jacaranda received no notice of the petition or the hearing thereon.
Jacaranda's objection to the appointment of receiver and motion for an order discharging the receiver, which alleged that the court was proceeding without jurisdiction, were denied at a subsequent hearing.
On appeal, Jacaranda contends that the trial court was without jurisdiction to appoint a receiver because no action or proceeding was filed and pending against Jacaranda at the time of the appointment. We agree.
C.R.C.P. 66(a) provides that "a receiver may be appointed by the court in which the action is pending at any time ...." (emphasis added) An action is pending after it is commenced under C.R.C.P. 3(a) by either filing a complaint with the court or by the service of a summons. And, it is the filing of the complaint or the service of summons which vests the court with jurisdiction to act. C.R.C.P. 3(b). C.R.C.P. 66 makes no provision for appointment of a receiver prior to the commencement of an action. Moreover, while § 38-39-112(1), C.R.S.1973 (1982 Repl.Vol. 16A), provides for the appointment of a receiver "[w]hen an action or proceeding has been commenced to foreclose a mortgage, trust deed, or other instrument securing an indebtedness ...," (emphasis added) no "proceeding" had been "commenced" because there had been no motion filed pursuant to C.R.C.P. 120.
While the ex parte appointment of a receiver may be permissible under emergency circumstances or where notice is impractical, see C. Wright & A. Miller, Federal Practice & Procedure § 2983 (1971); see also Oberto v. Moore, 93 Colo. 93, 23 P.2d 578 (1933), a case must be pending at the time of the appointment. Jones v. Bank of Leadville, 10 Colo. 464, 17 P. 272 (1887); 1 R. Clark, The Law & Practice of Receivers § 75 at 106-107 (3d ed. 1959). In Jones v. Bank of Leadville, supra, the court said:
(emphasis added)
And, as stated in 1 R. Clark, The Law & Practice of Receivers, supra:
Inclusion of a provision for appointment of a receiver in a deed of trust cannot invest the court with jurisdiction it does not otherwise have. See Clinic Masters, Inc. v. District Court, 192 Colo. 120, 556 P.2d 473 (1976); Sanchez v. Straight Creek Construction, 41 Colo.App. 19, 580 P.2d 827 (1978).
Here, on the record before us, no action or proceeding had been commenced against Jacaranda. See C.R.C.P. 3(a); see C.R.C.P. 120. Hence, the trial court was without jurisdiction to appoint a receiver.
The cause is remanded with directions to vacate the order appointing the receiver.
The record in this matter shows that Johnson commenced this action in the district court of Adams County on August 26, 1982, by filing a verified petition. The petition contained a request for ex parte appointment of a receiver. The trial court granted the request finding exigent circumstances existing requiring the appointment of a receiver. On September 8, 1982, Johnson commenced his proceedings to foreclose the deed of trust with the Public Trustee of Adams County. On September 9, 1982, Jacaranda entered its special appearance challenging the jurisdiction of the trial court to appoint a receiver because no action was pending in that court. A forthwith hearing was held at which hearing evidence of the commencement of the...
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