I dissent. I agree with the decision on the first proposition, which is to the effect that the order requiring the receiver to collect from the San Dimas Lemon Association, and ordering that association to pay over to the receiver the money in question, was a void order. I disagree with the second proposition, which runs to the effect that the association having paid the money to the receiver may now use the fact of such payment as a defense against the plaintiff's demand in the present action. It may be conceded that if the receiver had been actually seizing physical property and thereby taking it from the custody of the association, the latter would have been justified in submitting to such force, or threatened use of force, and in refraining from any attempt to resist such seizure. That appears to be in accordance with the opinion of the supreme court as stated inHavemeyer v. Superior Court, 84 Cal. 327, 397 [18 Am. St. Rep. 192, 10 L.R.A. 627, 24 P. 121].
But I hesitate to accept an extension of the Havemeyer decision so as to cover an instance of voluntary payment of money, where the money so paid over to the receiver belongs or is owing to a third person, and where the order directing the payment of such money is a void order. In Estate of Pusey, 180 Cal. 368
[181 P. 648], the supreme court quoted with approval Forbes v.Hyde, 31 Cal. 342, 348, wherein the court said: "A judgment absolutely void may be attacked anywhere, directly or collaterally whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither a basis nor evidence of any right whatever." A similar question was before this court in Miller v. Superior Court, 63 Cal.App. 1
[217 P. 817]. In that case we held that the superior court was without jurisdiction to adjudge the petitioners guilty of contempt by reason of their interference with the enforcement of a void order directing a receiver to take possession of certain property. In Fidelity etc. Assn. v. Citizens T. S. Bank, 186 Cal. 689, 692 [200 P. 631, 632], the supreme court held that a party in possession of property under a claim of right thereto may not be deprived of such property, "except by an order made in a proceeding to which it was a party and in which it had been given an opportunity to be heard." In the present case, the San Dimas Lemon Association was not given any notice or opportunity to be heard before the void order was made. As I construe the pleadings and the findings, the association was not threatened with any actual seizure to be made of cash in its hands. It had collected certain sums of money which it then owed or as agent was under obligation to pay over to George A. Binney. Upon the mere demand of the receiver that in compliance with said order "it pay to him as such receiver all moneys in its hands then owing to said George A. Binney," the association complied with that demand. But since the order was void, since there was no threatened actual seizure, and since the court was without power by contempt proceedings or otherwise to enforce its order, it cannot be said that the payment of the money by the association to the receiver was other than a voluntary act. I do not agree that by such voluntary act the association has been relieved from its obligation to pay the money to Binney or his assignee. It is my opinion that the judgment should be reversed.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 8, 1927.