¶1 On Petition For Rehearing
¶2 OPINION
¶3 By the Court,
¶4 In the petition for rehearing filed by respondents they do not take issue with our holding that an allowance of *18 damages for wrongful eviction by a receiver could be made only in the event that the procurement of the appointment of the receiver was unlawul. But respondents argue that: “the pleadings and findings (supported by the evidence) sustain the award of damages for the eviction of, and withholding from, defendants of the premises through the wrongful act of plaintiffs in procuring the appointment of the receiver.” Respondents proceed to set out certain findings and certain parts of the pleadings which they maintain sustain their position. However, the allegation of the cross-complaint, as we read it, sets up an entirely different theory. That allegation reads as follows: “That thereafter on or about February 20, 1942, and while defendant Maurice L. DeLay was in lawful and peaceful possession of said premises, under and by virture of the terms of said agreement, plaintiffs did wrongfully, and unlawfully and forcefully eject said defendant from said premises and the whole thereof, and deprive defendant of the use and occupancy thereof, and thence ever since has continued so to wrongfully and unlawfully deprive said defendant of the use and occupancy of said premises, all to his damage in the sum of Twenty Thousand Dollars ($20,000.00).”
¶5 And the principal finding of the court upon which the judgment was based follows the allegation of the cross-complaint hereinabove set out. Said finding reads as follows: “That it is true that on February 20, 1942, and while defendant Maurice L. DeLay was in lawful and peaceful possession, under and by virtue of the terms of the lease agreement first hereinbefore referred to, of the premises in said lease agreement described, plaintiffs did wrongfully and unlawfully and forcefully eject said defendant from said premises and the whole thereof, and did thereafter deprive said defendant of the use and occupancy thereof, and thence ever since have continued, and do still continue, so to wrongfully and unlawfully deprive said defendant of the use and occupancy of said premises, all to his damage in the sum of *19 Twenty-five Thousand, Nine Hundred Seventy Three dollars and seventy-six cents ($25,973.76).”
¶6 Following this finding the court entered its judgment in favor of the respondents in the said sum of $25,973.76.
¶7 We are convinced, from an inspection of the allegation of the cross-complaint and of Finding XV herein-above set out, that the cause of action was based upon the theory, and the court so found, that the damages sustained resulted from a wrongful eviction of respondents by appellants, and not from wrongfully procuring the appointment of the receiver.
¶8 The petition for rehearing is denied.