In re Angell

• Decision Date: 17 September 1902
• Citation: 131 Mich. 345,91 N.W. 611
• Court: Michigan Supreme Court
• Parties: In re ANGELL et al.

91 N.W. 611

131 Mich. 345

In re ANGELL et al.

Supreme Court of Michigan

September 17, 1902

Appeal from circuit court, Kent county, in chancery; Willis B Perkins, Judge.

In the matter of the petition of Crawford Angell and others trustees of the Masonic Life Association. Fron an order petitioners and the receiver of the association appeal. Modified.

Rood & Hindman, for appellant beneficiaries.

Crane Norris & Drew, for appellant Calkins.

MOORE J.

December 12, 1896, Charles W. Calkins was appointed receiver of the Masonic Life Association by the circuit court of Kent county, in chancery, and entered upon the discharge of his duties. In September, 1899, he presented his report to the court appointing him, purporting to contain a statement of his receipts and disbursements up to that time. He asked that he be allowed a salary of $125 a month as receiver. One of the circuit judges indorsed upon said report as follows: 'The foregoing report and statement examined and approved, and the receiver's account as therein stated is allowed as correct this 14th day of September, 1899. Wm. E. Grove, Circuit Judge.' The receiver in June, 1900, presented a second report, which showed the receipts and disbursements from the 12th day of September, 1899, up to and including the 12th day of June, 1900. The receiver's affidavit, annexed to the account, stated that the same was a true account 'from the 12th day of September, 1899, up to and including the 12th day of June, 1900,' and that he had served in the capacity of receiver 'from September 12, 1899, to June 12, 1900, a period of nine months.' The receiver asked for a salary of $125 per month for five months to February 1, 1900, and '$200 per month for the remaining four months embraced in that report for services.' The circuit court made the following indorsement: 'The foregoing report and statement examined and approved, and the receiver's account as therein stated is allowed as correct this 20th day of June, 1900, and his compensation is fixed as therein set forth. Willis B. Perkins, Circuit Judge.' Thompson & Temple were the receiver's counsel. Their first bill against the receiver was presented September 14, 1899. That bill ws intended 'to cover all services to March 1, 1899, rendered said receivers.' It amounted to $1,140. That bill contained an item: 'To assisting, preparing, and signing 1,850 circular letters, looking after replies from the same, consulting with parties in the office that called in response thereto.' The circuit judge indorsed that bill as follows: 'The foregoing bill allowed at $1,000, dated September 14, 1899. Wm. E. Grove, Circuit Judge.' Thompson & Temple rendered a second bill to the receiver. The second bill was for services 'from March 1, 1899, to June 12, 1900.' That bill contained an item on its face for 'writing and amiling 1,907 letters to collect assessments after the decision of the supreme court.' The circuit judge indorsed this bill as follows: 'O. K. Willis B. Perkins, Circuit Judge.' On June 19th it was paid in full by the receiver. August 17, 1900, the petitioners filed a petition, asking for the removal of Mr. Calkins and an accounting. A hearing was had in open court. October 9, 1900, the court made an order removing Mr. Calkins, and also passing upon his account. He reduced the compensation of $200 a month for four months, which he had allowed the receiver by the previous order, to $125 a month for all of the time which he served as a receiver. He also reduced the amount allowed by him in June, 1900, to Thompson & Temple to the sum of $500. He directed the receiver to file a final account. Mr. Taft was appointed a receiver, and Mr. Calkins was directed to turn over all the books and assets to him. Later Mr. Calkins filed a petition, in which he recited what had been done in the proceeding, and stated, among other things: 'And your petitioner is ready and willing to comply with the order of the court, and turn over to his successor all property in his hands, or under his custody or control, belonging to the said Masonic Life Association;' and prayed, among other things, 'that on filing the receipt of the new receiver for the balance, if any, of the funds and property in your petitioner's hands, as determined after the allowance of said account and this petition, your petitioner's bond as receiver may be canceled, discharged, and surrendered.' The final account was passed upon in February, 1901. March 23, 1901, the petitioners appealed. The receiver also appealed. The receiver claims that under the evidence the court should not have removed him. On the part of the petitioners it is urged that not only was the circuit judge justified in removing the receiver, but that the latter did not take his appeal from the order of removal in time, and also that, as he stated in his petition of October he was ready to comply with the order of the court which removed him, he is now estopped from raising the question.

It is not necessary to pass upon the last two contentions stated. In Beach on Receivers (section 782), it is said 'Inasmuch as the appointment and removal of a receiver are matters which rest essentially in the discretion of the court, it is a general rule that a court of appeal will not review the questions which have been passed upon by a lower court in relation thereto; and the rule is the same whether the one party or the other--the party of the receiver or the party opposed--attempts to prosecute the appeal.' It is not necessary to say, if it clearly appeared the circuit judge had abused his discretion in removing the receiver, we would not review his action. The circuit judge filed a written opinion, in which he said, among other things: 'A review of the proceedings in this case convinces me that at no time since his appointment has the receiver acted with that diligence and promptitude required of him, under the plain terms of the statute and the well understood rules of law...