¶1(dissenting):
¶2I am unable to agree to an affirmance of this order. The receiver was appointed under section 1772 of the Code of Civil Procedure, but his appointment, so far as a bond is concerned, is controlled by section 715 of the Code, which provides : “ A receiver appointed in an action or special proceeding, must, before entering upon his duties, execute and file with the proper clerk, a bond to the People, v with at least two sufficient sureties, in a penalty fixed by the court, judge or referee, making the appointment, conditioned for the faith- . ful discharge of his duties as receiver …
¶3It may be conceded that the receiver’s appointment was. regular, in the sense that it was not void, but it was so far incomplete — in that no provision had been made for the giving of a bond — that the receiver could not perform any act as such. To hold otherwise is to nullify' so much of section ■ 715 of the Code as provides that a receiver “ must, before entering upon his duties, execute and file with the proper clerk, a bond.” The receiver not being in a position to make the demand, it Was not a contempt of court for the relator to refuse to comply with it. It seems to me to be quite a novel proposition that one commits contempt of court in not turning over all of his property to a person not authorized to receive it, simply because an unauthorized demand has been made therefor.
¶4I think the order appealed from should be reversed and the motion ■ to discharge the relator granted.
¶5Order affirmed.