Hembree v. Dawson

• Decision Date: 11 February 1890
• Citation: 23 P. 264,18 Or. 474
• Parties: HEMBREE et al. v. DAWSON et al.
• Court: Oregon Supreme Court

23 P. 264

18 Or. 474

HEMBREE et al. v. DAWSON et al.

Supreme Court of Oregon

February 11, 1890

Appeal from two decisions of the circuit court for the county of Yamhill, upon collateral questions arising out of a suit pending in that court. The merits of the said suit were determined upon appeal to this court. The case will be found reported in 16 Or. 153, 19 P. 73. After it was remanded to the said circuit court for final disposition, that court upon motion of the respondents' counsel, and against the objection of the appellants' counsel, allowed to the receiver, who had been appointed in the suit soon after its commencement, the sum of $1,269.15, on account of his commissions and expenses incurred therein. Thereupon the appellants' counsel included in their bill of costs and disbursements said amount allowed to the receiver, as an item of such disbursements, which the clerk of said circuit court disallowed, and the court, on appeal from the taxation of costs by the clerk, affirmed. These constitute the two decisions referred to.

(Syllabus by the Court.)

Where the plaintiffs in a suit against defendants to declare void a certain instrument held by the latter, which affected certain personal property that the plaintiffs had a lien upon procured the appointment of a receiver to manage and sell this property, who accordingly sold it, and held the proceeds subject to the order of the circuit court by which he was appointed, and it was found upon the trial of the suit that the instrument constituted a valid chattel mortgage against the property, in favor of the defendants, given to secure debts far in excess of the proceeds arising from the sale of the property, held, notwithstanding that an order of the court directing the receiver to retain out of such proceeds his commissions, and expenses incurred in conducting the business, before applying the fund to the payment of the defendant's debt, was within the discretion of the court which should not be interfered with, where it was not shown to have been abused.

Milton W. Smith, for appellants.

In a case where a receiver is wrongfully appointed, his commissions and expenses are not properly chargeable against the fund in his hands. High, Rec.§ 796; Howe v Jones, 66 Iowa, 156, 161, 23 N.W. 376, Lammon v Giles, 3 Wash.T. 117, 123, 13 P. 417. Where a receiver is wrongfully appointed, the court should allow the defendant to tax as part of his disbursements the commissions and expenses of the receiver, if he is allowed to deduct...