Stoff

The defendant in this case appeals from an order' appointing a receiver.

The receiver was appointed by an ex parte order in an action for the foreclosure of a mortgage. Section 566 of the Code of Civil Procedure provides that where a receiver is appointed ex parte “the court, before mating the order, must require from the applicant an undertaking, ” in an amount to be fixed by the court “to the effect that the applicant will pay--to the defendant all damages” sustained by defendant if the applicant shall have wrongfully procured the order. The record shows that this undertaking was not required as provided by that section. The only undertaking required by the order appointing the receiver was a bond to be filed by the receiver, as required by section 567 of the Code of Civil Procedure. The order was erroneous because of the failure to exact any undertaking from the applicant before .making it.

The applicant, after the ^filing of the transcript, procured from the district court of appeal, to which court the appeal was erroneously taken, an order directing the clerk of the superior court to file a certified copy of an undertaking on file in the superior court, which the appellant…