GOES v. PERRY (1940)

From an ex parte order appointing a receiver predicated upon a complaint in intervention and an accompanying affidavit, defendant Perry appeals.

The essential facts are:

In April, 1937, plaintiff Goes commenced an action to recover possession of certain personal property. September 3, 1937, the trial court permitted respondent Baumann to file a complaint in intervention and appointed a receiver for the personal property which was the basis of plaintiff Goes' action. It is from this latter order that defendant Perry appeals, claiming that plaintiff in intervention Baumann was improperly permitted to intervene in the present action, as there was no showing that he had an interest in the subject of the litigation as required by section 387 of the Code of Civil Procedure.

This is the sole question necessary for us to determine:

In the absence of an objection to the filing of a complaint in intervention either by demurrer, motion to strike, or other appropriate proceedings, may a party for the first time on appeal raise the objection that the order of the trial court permitting the intervention was improper?

This question must be answered in the negative. The law is established in California that in the absence of an objection in the trial court to an order permitting the filing of a complaint in intervention, a party may not urge error in the making of such order for the first time on appeal. (People v. Reis, 76 Cal. 269, 273, 18 P. 309; Smith v. Penny, 44 Cal. 161, 164; McKenty v. Gladwin, Hugg & Co., 10 Cal. 227, 228; County of Yuba v. Adams & Co., 7 Cal. 35; Carlin v. Masten, 118 Cal.App. 373, 375, 5 P.2d 65). Since it appears that defendant Perry failed by motion to strike, or otherwise to raise the objection in the trial court which he is now presenting in this court, the above rule is applicable, and he is foreclosed from urging alleged error of the trial court in permitting the complaint in intervention to be filed.

For the foregoing reasons the order is affirmed.

McCOMB, Justice.

We concur: MOORE, P.J.; WOOD, J.