Davila

This is an action in which a partnership relation is averred in the complaint and an accounting is prayed for. Upon the filing of the complaint the court made and entered its order, ex parte, appointing a receiver “upon giving a bond . . . for the faithful performance of his duties as such receiver and upon taking his oath of office in the manner required by law.” The complaint was filed August 27, 1908; the order appointing the receiver was made August 31, 1908, and on September 2, 1908, the receiver’s bond was approved and filed and his oath of office duly taken. It appears from the clerk’s certificate “that no other or further bond or undertaking was ever filed by the receiver in said action or on his behalf, and that no order was ever made by said court fixing the amount of, or requiring from said applicant or plaintiff an undertaking, and that no undertaking was ever filed by or on behalf of said applicant, and that no notice of the hearing of the application for a receiver is on file in this office.” Defendant Heath appeals from the order.

Section 566 of the Code of Civil Procedure, among other things, provides as follows: “If a receiver is appointed upon an ex parte…