This action was brought on the 10th of July, 1862, to recover possession of a copper mine. On the 7th of August, the plaintiff filed an affidavit stating that “ said defendants have taken from the copper mine in dispute some twenty or .twenty-five tons of copper ore, and threaten to dispose of the same; and if a receiver is not immediately appointed, such threat will be carried into execution, and the said copper ore be lost to these plaintiffs.” On the same day, on application of plaintiff, a receiver was appointed, and so far as shown by the record, without notice to defendants. The cause was tried in January. On the 26th of that month, at the close of the plaintiff’s testimony, the Court—being of opinion that plaintiff failed to show title—granted a nonsuit on motion of defendants. The defendants then moved that the order of August 7th, appointing a receiver, be vacated; and the motion, after-argument, was taken under advisement. Afterwards, within the time prescribed by law, the plaintiff moved to set aside the nonsuit, and for a new trial. On the 30th of March, while the motion for a new trial was still undetermined, the Court entered an order vacating the appointment of the receiver, and from this order the present appeal is taken.

It is insisted that the pendency of a motion for a new trial, proprio vigore, stayed all proceedings, and that it was error to vacate the order appointing a receiver, pending the motion. Admitting that the proceedings were stayed generally by the motion, it does not follow that the Court could not vacate the order.

*16The exercise of the power of appointing a receiver rests very much in the sound discretion of the Court, “ to be governed by a view of the whole circumstances of the case, one of the circumstances being the probability of the plaintiff ■being ultimately entitled to a decree.” (Adams’ Equity, Ed. ’59, p. 725, Note 1; Edwards on Receivers, 2.)

A prima facie right must be made out in the first instance. (Practice Act, section 143.) If it should subsequently appear that the appointment of the receiver was improvidently made, the Court would undoubtedly have power to vacate it. In this instance the Court, upon the trial, was satisfied that the plaintiff, upon his own testimony, failed to sustain the prima facie case made by his pleadings and affidavit. Upon such a state of the case, it was clearly competent for the Court to vacate the order, notwithstanding a motion for a new trial was pending, and admitting the effect of the motion to be to stay proceedings generally. The order might have been vacated before trial upon a proper showing, and with much greater reason after it had appeared upon the trial, to the satisfaction of the Judge, that there was no probability of an ultimate recovery in the action. The Judge does not appear to have vacated the order as a matter of course upon granting the nonsuit. He took the question under advisement, and it must be presumed that the propriety of continuing the receiver, under all the circumstances of the case, was fully considered. We cannot perceive, from anything shown by the record, that the Court, in vacating the order, exceeded the bounds of a sound judicial discretion. We may add, it is not clear that the affidavit makes a sufficient prima facie case to justify the appointment of the receiver in the first instance..

We think the case of Lurvey v. Wells, Fargo & Co., 4 Cal. 106, has been misapprehended by appellant’s counsel. That case does not hold, as seems to be supposed, that at the moment a notice of motion for a new trial is served the Court loses all power over the case, except such as relates immediately to the determination of that motion, until such motion is finally decided.- It simply holds that when a party, within *17the proper time, gives his notice and takes the steps necessary to perfect his motion, his rights as to such motion are preserved, and the Court retains its jurisdiction to grant a new trial, even though there should be an adjournment of the term before the motion is brought to a hearing. This was the only question considered by the Court, and all that was decided. The Judge below in that case construed the decision in Baldwin v. Creamer, as holding that unless a motion for new trial is perfected and decided at the same term at which the case is tried, the Court loses all jurisdiction over the case, and cannot grant a new trial at a subsequent term, although the party has taken all the necessary steps within the time prescribed by the statute, and no hiatus has occurred in his proceeding. On this construction he dismissed the motion for a new trial, on the ground that he had lost jurisdiction over the case by the adjournment of the term pending the motion. On the appeal the only point to which the attention of the Judge who delivered the opinion of the Court was directed, was whether, by the adjournment, the Court had lost jurisdiction to entertain the motion for a new trial. The Court did not undertake, nor did it intend to say, that all proceedings were necessarily stayed, or that no other action could be taken in the case till the motion for a new trial should be decided. There was no such question in the ease, and all that was said had a direct reference to the precise question then under consideration, and to nothing else. To extend the decision of the Court beyond the question considered, would be to repeat the error committed by the District Judge in that very case, in construing the decision in Baldwin v. Creamer.

The motion for a new trial doubtless suspended the operation of the judgment of nonsuit, so far as to prevent it from operating of its own vigor as a discharge of the receiver, and preserved the rights of the plaintiff acquired under the order appointing the receiver until the order was directly acted upon by the Court. But it did not suspend the power of the Court to determine, under the circumstances of the case developed ■ on the trial, the propriety of continuing the order in force till *18the motion for a new trial should be finally determined. There is nothing in the case of Lurvey v. Wells, Fargo & Co., when properly construed, inconsistent with the views here expressed.

Judgment affirmed.