Decided November 12, 1912.
On Petition for Rehearing.
(127 Pac. 546.)
Opinion by
Mr. Chief Justice Eakin.It is contended in the motion that the order appointing the receiver is a final order, and therefore appealable, and that the motion to dismiss the appeal should have been sustained for the reason that the transcript had not been filed within the time allowed by law. The appointment having been made ex parte prior to the service of the summons, and upon an insufficient showing, it was void as to the defendant; and the subsequent orders were not final, at least as to her, but were merged in the final decree and reviewable on the appeal therefrom, if not otherwise reviewed on appeal. Oldland v. Oregon Coal & Nav. Co., 55 Or. 340 (99 Pac. 423: 102 Pac. 596); High, Receivers (4 ed.), Sections 25, 26; Wilder v. Reed, 46 Or. 54 (78 Pac. 1027); Clay v. Clay, 56 Or. 538 (108 Pac. 119: 109 Pac. 129.
It is also urged that the defendant waived any defects in the appointment. No mention is made of the acts constituting such waiver, except her inaction. By her answer she denied plaintiff’s right to a receiver and *237contested every fact upon which the appointment was made, and has not consented to nor acquiesced in any act of the receiver. This was notice to the plaintiff that he must act at his peril, and he cannot now complain that she should have done more. Defendant can only be estopped as to acts encouraged by her or the- benefits of which she accepted. There was no duty upon her to act until the time to file her answer, and she had no opportunity to appear sooner.
10. Except in cases of the greatest emergency, notice must be given to the person in possession of the property,, and the facts constituting such emergency must be shown. Conclusions are not sufficient. High, Receivers, Section 111, et seq. Counsel quote from High, Receivers, Section 37, to the effect that where the parties are before the court upon the appointment of a receiver, and have the right to object, if no objection is made, they will be deemed to acquiesce in the appointment; but we have no such condition here. Defendant was not before the court, and had no notice of the application nor opportunity or right to be heard. High, Receivers, Section 17, says that the suit must be actually pending; that the person whose property it is sought to place in the receiver’s hands must be a party to the suit in order that he may have an opportunity of resisting the application. It is said in Vila v. Grand Island Electric Light Co., 68 Neb. 222, 240 (97 N. W. 613, 616: 63 L. R. A. 791: 110 Am. St. Rep. 400: 4 Ann. Cas. 59), that receivership proceedings belong to a class of remedies which are wholly ancillary or provisional, and in aid of the primary object of the litigation, and are not permissible as the sole and primary object of the suit; that is, where the suit is instituted wholly for that purpose, unless authorized by statute. See, also, Mann v. German-American Investment Co., 70 Neb. 454 (97 N. W. 600). In the latter case, it is conceded that the action pending *238must be an action for some relief or the enforcement of some right other than the mere appointment of a receiver. Smith, Receivers, Sections 371, 373, 376, and authorities cited; High, Receivers, Section 17; State v. Ross, 122 Mo. 435 (25 S. W. 947: 23 L. R. A. 534). And the inaction of the defendant in a proceeding in which the sole purpose of the suit is the appointment of a receiver with power to create a large indebtedness against the property, for the payment of which it may be immediately sold, cannot constitute a waiver of errors or jurisdiction.
Again, it is contended that the court improperly found that the assessment work for the year 1909 had been performed by the defendant; but the court does not so find. It holds that it does not satisfactorily appear that the assessment work was not done.
11. The burden was upon the plaintiif to establish this fact before he was entitled to a receiver. No evidence of that fact was offered until the trial upon the merits, and that does not give proof of specific facts from which the court could find that the work had not been done.
12. The application upon which the appointment was made is verified by the defendant to the effect that it is true as he verily believes, and he submits, at the same time, his affidavit to the effect that he had in his possession affidavits of three men to the effect that the assessment work for the year 1909 had not been done, which is not even hearsay evidence of any facts.
.Plaintiff contends that an emergency existed for the appointment of a receiver without notice to the defendant, but no such contention was made in the application for the appointment.
13. In the motion for rehearing he says that he waited until the last moment before beginning the suit, and therefore there was not sufficient time to give notice, *239although he had been in possession of the property a considerable-time prior thereto and knew the conditions. This can constitute no excuse for failure to give notice to the defendant, who had not even been served with summons.
We adhere to the former opinion. Motion denied.
Reversed: Suit Dismissed:
Rehearing Denied.