John V. Farwell Co. v. Craney

Decision Date25 April 1916
Citation29 Idaho 85,157 P. 383
PartiesJOHN V. FARWELL COMPANY, a Corporation, Respondent, v. GLENN B. CRANEY, as Trustee of the Interstate Mercantile Company, a Corporation, a Bankrupt, Appellant
CourtIdaho Supreme Court

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Appeal from certain orders made by the court in regard to compensation of the receiver and the approval of his final report. Orders of the court affirmed.

Affirmed, with costs in favor of the respondent.

Reed &amp Boughton, for Appellant.

An appeal will not lie from orders made upon ex parte application. (2 Cyc. 621; In re Dunn, 59 Hun, 626 14 N.Y.S. 14; Stewart v. Stewart, 127 A.D. 672, 111 N.Y.S. 736; Wilson v. Martin, 43 Wash. 95, 86 P 205, 10 Ann. Cas. 37; Board of Education v. Ward, 50 W.Va. 443, 40 S.E. 344.)

"An order allowing compensation to a receiver should be made only after notice and a hearing at which the parties interested have an opportunity of contesting the claim." (34 Cyc. 473; Joralmon v. McPhee, 31 Colo. 40, 76 P. 922; Ruggles v. Patton, 143 F. 312, 74 C. C. A. 450; Merchants' Bank v. Crysler, 67 F. 388, 14 C. C. A. 444.)

"Courts are usually indisposed to allow a receiver any payment made to counsel for services when the employment has not been authorized by the court." (High on Receivers, 4th ed., p. 956; Dalliba v. Winschell, 11 Idaho 364, 114 Am. St. 267, 82 P. 107; Hulings v. Jones, 63 W.Va. 696, 60 S.E. 874; Henry v. Henry, 103 Ala. 582, 15 So. 916; Clapp v. Clapp, 49 Hun, 195, 1 N.Y.S. 919.)

Ezra R. Whitla, for Respondent.

The orders made allowing compensation to the receiver are appealable. (Tompson v. Huron Lumber Co., 5 Wash. 527, 32 P. 536.)

"An order requiring payment of receiver's compensation and other expenses out of funds in the receiver's hands is a final order, from which an appeal lies." (Ogden City v. Bear Lake etc. Irr. Co., 18 Utah 279, 55 P. 385; Grant v. Los Angeles & P. Ry. Co., 116 Cal. 71, 47 P. 872; Union Nat. Bank of Chicago v. Mills, 103 Wis. 39, 79 N.W. 20; Guarantee Trust & S.D. Co. v. Philadelphia etc. R. Co., 69 Conn. 709, 38 A. 792, 38 L. R. A. 804; Crosby v. Morristown & C. G. R. Co. (Tenn.), 42 S.W. 507, 508; 2 Cyc. 612.)

The lower court's decision in such matters is practically conclusive, as he has personal knowledge of what the receiver did and the necessity for the appointment of counsel, and is in a position to know the correctness of the compensation. (Olson v. State Bank, 72 Minn. 320, 75 N.W. 378; Hickey v. Parrot Silver & C. Co., 32 Mont. 143, 108 Am. St. 510, 79 P. 698; Stuart v. Boulware, 133 U.S. 78, 10 S.Ct. 242, 33 L.Ed. 568; Welch v. Renshaw, 14 Colo. App. 526, 59 P. 967; Tompson v. Huron Lumber Co., 5 Wash. 527, 32 P. 536.)

"The receiver is entitled, as a matter of right, to the benefit of counsel when the nature of the trust requires it." (Hickey v. Parrot Silver & C. Co., 32 Mont. 143, 108 Am. St. 510, 79 P. 698; High on Receivers, par. 805, p. 959; Anderson v. Fidelity & Deposit Co., 100 Ga. 739, 28 S.E. 463.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought by the plaintiff corporation to recover on a promissory note of $ 4,666.66 alleged to have been executed by the defendant corporation and others, and for the appointment of a receiver to take charge of the property of the defendant corporation.

It appears that during the proceedings Glenn B. Craney, trustee of the estate of the defendant Interstate Mercantile Company, a bankrupt, was substituted as defendant in the place and stead of said Interstate Mercantile Company, the corporation which was made defendant by the plaintiff, and the cause thereafter proceeded under the title of John V. Farwell Co., a Corporation, v. Glenn B. Craney, as Trustee of the Interstate Mercantile Company, a Corporation, a Bankrupt.

A receiver was appointed with power to take possession of the assets of said corporation and to continue the mercantile business of said corporation under the orders of the court.

The answer put in issue many of the allegations of the complaint and also denied the execution of said note by the defendant corporation, and denied that the defendant was in any manner indebted to the plaintiff, and prayed that the plaintiff take nothing by this action, and also filed a motion to vacate the order appointing the receiver. The motion was denied.

Thereafter the receiver prepared an inventory of the assets of said defendant corporation. Objection was made to the expense allowed the receiver for taking an inventory of the stock of goods; also to the allowance to the receiver of six dollars per day compensation; also for the allowance of $ 250 attorney's fees and $ 50 expenses; also to the acceptance of the report of the...

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