# Goodale v. Fifteenth District Court

> California Supreme Court · July 1, 1880 · 56 Cal. 26

URL: https://www.frixlaw.com/law-library/cases/5439889

## Case

- **Full name:** DAVID GOODALE v. THE FIFTEENTH DISTRICT COURT
- **Court:** California Supreme Court
- **Decided:** July 1, 1880
- **Citations:** 56 Cal. 26; 1880 Cal. LEXIS 345
- **Precedential status:** Published
- **Opinion:** Dissent by Sharpstein
- **Judges:** Morrison, Myrick, Sharpstein
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5439889

## Opinion text

Sharpstein, J., dissenting:
I dissent. I think, as was said by Baldwin, J., in Waterman v. Lawrence, 19 Cal. 210 , “ that this proceeding for partition is a special proceeding, and that the statute prescribes its course and effect,” and I agree with Mr. Justice Rhodes, that “ there is no such thing under our system of pleading and practice as a suit in equity for partition distinct from the proceeding provided for in the act. The rules there laid down are applicable alike to all actions for partition.” (Gates v. Salmon, 35 Cal. 576 .)
Chapter'v, part ii, title vii, of the Code of Civil Procedure, enumerates the actions in which receivers may be appointed, and then provides that they may be appointed “ in all other cases where receivers have heretofore been appointed ■ by the usages of courts of equity.” I am not aware that by the usages of courts of equity receivers were ever appointed in other than equity cases, of which the action of partition in this State is not one. Ror is it claimed in this case that it ever became a usage in courts of equity to appoint receivers in all suits for partition in equity. But it is urged that because courts of equity did appoint receivers in some cases of partition, the jurisdiction of the Court to appoint one in this case cannot be questioned. The fallacy of this argument appears to me too apparent. The power is not given to appoint in all other actions where receivers have heretofore been appointed by the usages of courts of equity, but in all other cases where they have been so appointed. I cannot construe this to mean that the Court may appoint a receiver in any action in which a receiver was ever before appointed ; nor do I think that cases means actions. The actions in which a receiver can be appointed are specifically enumerated. The cases in which they may be appointed are only such as by the usages of courts of equity receivers have been appointed in. The word “ usages ” here doubtless means long-continued practice or habitual use; and it is quite clear that courts of equity have never appointed receivers in partition as between tenants in common, except in exceptional cases, of which this is not shown to be one. It is true that the court which made this appointment was a court of general jurisdic *36 tion, but in the matter of appointing receivers, it is conceded that its power is limited by the Code, and that it can only appoint them in cases in which it is specifically authorized so to do by the Code. If the Code had specifically mentioned in what cases in actions of partition receivers might be appointed, no one would contend that they could be appointed in other cases in such actions. And the Code does limit the authority to cases in which, by the usages in equity, receivers have been heretofore appointed. If this Court can ascertain in what cases in actions of partition receivers were appointed by the usages in equity, it is the duty of this Court to limit the exercise of the power to those cases; and as this is not within that category, the order made by the Court below was clearly in excess of its jurisdiction, and should be annulled.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5439889. Public record. Not legal advice.