Ford v. Gilbert

• Decision Date: 30 March 1903
• Parties: FORD v. GILBERT et al.
• Court: Oregon Supreme Court

71 P. 971

42 Or. 528

FORD v. GILBERT et al.

Supreme Court of Oregon

March 30, 1903

Appeal from Circuit Court, Marion County; R.P. Boise, Judge.

Suit by Tilmon Ford, as executor of the will of William Cosper deceased, against A.T. Gilbert and others, wherein Claud Gatch was appointed receiver. Petition by Henry B. Thielsen for an order directing the receiver to pay him a certain sum as compensation, and to reimburse him for money expended while acting as receiver pendente lite of defendants. From an order sustaining a demurrer to the petition, petitioner appeals. Reversed.

W.H Holmes, for appellant.

J.N Brown, for respondent Claud Gatch. R.J. Fleming, for certain respondent creditors.

BEAN J.

This is an appeal from an order of the circuit court of Marion county, sustaining a demurrer to and dismissing the petition of Henry B. Thielsen for an order directing Claud Gatch to pay out of the funds in his hands, as receiver of the property of Gilbert Bros., the sum of $250 as compensation to the petitioner, and $304.72 to reimburse him for money necessarily expended while receiver pendente lite of the same firm and property, under appointment of the Circuit Court of the United States for the District of Oregon. The petition alleges, in substance, that Thielsen was appointed temporary receiver of the property of Gilbert Bros. by the United States court, in a suit therein pending wherein Emma Johnson was plaintiff, and Tilmon Ford, as executor of the last will and testament of William Cosper deceased, and Gilbert Bros., were defendants; that the court refused to make such appointment until Gilbert Bros. and the other defendants were notified of the application therefor; that notice was accordingly given, and all the parties appeared in person and by attorneys, and agreed that "it was necessary and proper that a temporary receiver should be appointed to take charge of all the property of the said Gilbert Bros., pending the examination and the trial of said cause"; that, acting upon such assent and in pursuance thereof, the court, after hearing the suggestions of plaintiff and defendants in favor of various persons for the position, appointed the petitioner; that soon thereafter the plaintiff, Tilmon Ford, as executor of the last will and testament of William Cosper, deceased, commenced a suit in the circuit court for Marion county against Gilbert Bros. for an accounting, and applied for the appointment of a receiver of their property, whereupon the defendant Claud Gatch was appointed as such receiver; that thereafter the defendants demurred to the complaint in the suit brought by Johnson against Ford in the United States court, on the ground that it did not state facts sufficient to constitute a cause of suit, and that the court had no jurisdiction of the subject-matter; and on the 24th day of May, 1901, the demurrer was sustained, on the ground that the court "has no jurisdiction of the defendants in said cause, or any of them, nor of the subject-matter of the action," and because the complaint "does not state facts sufficient to constitute a cause of action or entitle the plaintiff to the relief demanded therein." It was thereupon adjudged and decreed that the complaint be dismissed, and that the demurring defendants have and recover of and from the plaintiff their costs and disbursements. At the same time, and as a part of the same judgment and decree, Thielsen was ordered and directed to deliver to the receiver appointed by the state circuit court all the property in his possession as receiver, and that upon such delivery he be discharged from his trust and from any further duties thereunder. It was further ordered and decreed that his remuneration and expenses (a bill of items of which was presented to and approved by the court, amounting in the aggregate to $554.72)...