111 P.2d 628

SALIM ACKEL, Appellant, v. BRIGIDA ACKEL, Appellee.

Civil No. 4190.Supreme Court of Arizona.
Filed March 22, 1941.

1. DIVORCE. — In divorce proceeding where appointment of receiver for community assets is essential, it would not be proper under the statute to appoint the husband receiver. (Code 1939, § 22-303.)

2. DIVORCE. — In divorce proceeding, the costs of appeal should under facts shown by record be a charge against the community property of the parties.

[1] See 22 Cal. Jur. 463; 23 R.C.L. 41 (7 Perm.Supp., p. 5302).

APPEAL from a judgment of the Superior Court of the County of Maricopa. J.C. Niles, Judge. On motion for rehearing. Motion denied. For former opinion see 110 P.2d 238, ante, p. 14.

Mr. Henderson Stockton, and Mr. S.N. Karam, for Appellant.

Messrs. Lewkowitz Wein, for Appellee.

LOCKWOOD, C.J.

Appellee, in her motion for rehearing, has urged most strenuously that the court erred in its decision.

We have examined the motion carefully and think that, with one exception, it adds nothing new on the matters decided by this court in the previous opinion. Therein we suggested that it might be well to consider the appointment of appellant as receiver, although we did not direct the trial court to take such action.

Our attention has been called to section 22-303, Arizona Code, 1939, which reads, in part, as follows:

“Persons not to be appointed — Oath and Bond — Certificate. No party, or officer of any corporation

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which is a party, attorney or person interested in an action shall be appointed receiver therein. . . .”

[1] We think, after a review of the authorities, that this section is applicable to the present proceeding and that it would be error for the trial court to appoint appellant, as suggested by us, although of course he may be consulted as to who should be appointed.

[2] We are further of the opinion that under the peculiar circumstances of this case, the costs of the appeal should be a charge against the community property of the parties.

The motion for rehearing is denied.

McALISTER, and ROSS, JJ., concur.

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