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Wingfoot California Homes Co. v. Valley Nat. Bank of Phoenix

Supreme Court of Arizona

October 8, 1952

WINGFOOT CALIFORNIA HOMES CO.
v.
VALLEY NAT. BANK OF PHOENIX

Affirmed.

Herbert Mallamo, Phoenix, for appellant, and Leslie Parry, Phoenix, of counsel.

Gust, Rosenfeld, Divelbess, Robinette & Linton, Phoenix, for appellee.

De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.

OPINION

De Concini, Justice.

[74 Ariz. 288] The plaintiff, Valley National Bank, appellee herein, on June 26, 1951, filed a verified complaint against defendant, appellant, Wingfoot California Homes Co., praying for a money judgment and for foreclosure of certain mortgages. These mortgages were on 43 lots in Chandler, Arizona, where the defendant had constructed a housing development known as Wingfoot Gardens. A copy of the complaint and summons, together with an order to show cause why a receiver should not be appointed, was served on the defendant. The defendant made no response to the order to show cause but was represented at the hearing on the order, held July 11, 1951. A receiver was appointed by the court on July 27, 1951. The appellant's assignment of error is to the effect that the lower court erred in appointing a receiver because:

1. It was without jurisdiction so to do, and

2. The appointment of a receiver was an abuse of discretion by the lower court.

It is defendant's contention that the lower court had no jurisdiction to appoint a receiver in this case even though the parties contracted for the appointment of a receiver, under certain conditions, when the mortgages were executed. Defendant's contention here is correct as an [74 Ariz. 289] abstract principle of law since it is well stated that parties may not by contract or stipulation confer jurisdiction on a court. Baker v. Varney, 129 Cal. 564, 62 P. 100; Lewis v. Shaw, 77 Cal.App. 99, 246 P. 86. The right of a court to appoint a receiver must exist under the law independent of a contract in question. However, where the court has acquired jurisdiction to appoint a receiver, and this appointment is sought for a legitimate purpose, it may proceed upon the consent of the parties interested. Logan v. Mauk, Tex.Civ.App., 126 S.W.2d 513.

Page 739

Section 62-503, A.C.A. 1939, provides in part as follows:

"A mortgage is a lien upon everything that would pass by a grant of the property, but does not entitle the mortgagee to the possession of the property, unless authorized by the express terms of the mortgage. * * *"

By this section, then, it can readily be seen that if in its opinion a receiver is necessary for the protection and preservation of the property, the court has jurisdiction to appoint a receiver in the instant case to take possession of the mortgaged property for the benefit of the mortgagee. The above statute confers upon the court the jurisdiction to appoint a receiver if conditions warrant it. The mortgages sought to be foreclosed included the "rents, issues, and profits", and also provided "that in any action to foreclose this mortgage a receiver shall, upon the application of ...


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