Joslin v. Williams

• Citation: 107 N.W. 837,76 Neb. 594
• Parties: JOSLIN ET AL. v. WILLIAMS.
• Decision Date: 03 May 1906
• Court: Supreme Court of Nebraska

76 Neb. 594

107 N.W. 837

JOSLIN ET AL.

v.WILLIAMS.

Supreme Court of Nebraska.

May 3, 1906.

Syllabus by the Court.

In an action for damages growing out of the wrongful appointment of a receiver, the rental value of the property sequestered, during the period of the receivership, and the value of the services of counsel employed to procure the vacation of the order appointing the receiver, are elements proper to be considered in determining the measure of damages.

The approval of the accounts of a receiver, wrongfully appointed, does not adjudicate the question of damages between the litigants in the action in which the receiver was appointed, where the party resisting such appointment and procuring a reversal of the order making the appointment does not participate in the accounting and receives no advantage therefrom.

The fact that the Supreme Court, in vacating an order appointing a receiver, puts its decision upon a ground different from the one urged by counsel, does not deprive the party procuring the vacation of the order of the right to recover, in an action for damages, the value of the services of his attorney in procuring the judgment of vacation.

Commissioners' Opinion. Department No. 2. Error to District Court, Douglas County; Bartlett, Judge.

Action by Dora E. Williams against Charles S. Joslin. Judgment for plaintiff, and defendants bring error. Affirmed.Hamilton & Maxwell, for plaintiffs in error.

B. N. Robertson, for defendant in error.

JACKSON, C.

In July, 1901, Charles S. Joslin and Suviah Joslin, as trustees under the will of John J. Joslin, deceased, procured the appointment of a receiver in an action to foreclose a mortgage, wherein they were the plaintiffs and Dora E. Williams et al. were defendants. Upon appeal to the Supreme Court the order appointing the receiver was vacated, and the petition for the appointment dismissed. Joslin et al. v. Williams, 3 Neb. (Unof.) 194, 93 N. W. 701. In that proceeding, the Fidelity & Deposit Company of Maryland was surety on the bond of the applicants for the appointment. The receiver made report to the district court showing the collection of rents amounting to $257.60, and disbursements to the amount of $143.41, including his fees, and the balance, by direction of the court, was paid over to the clerk, subject to the order of Dora E. Williams, and that fund still remains in the custody of the court, and thereupon Dora E. Williams brought suit against the Joslins and their surety on the bond for damages because of the wrongful appointment of the receiver, and recovered judgment, from which error is prosecuted on behalf of the Joslins and their surety. In the discussion of the case the parties will hereafter be designated as they were designated in the court below.

The principal questions presented for determination in this court may be summarized, first, as to the effect of the order approving the report of the receiver and directing the disbursement of funds upon the plaintiff's claim for damages by reason of the wrongful appointment; and, second, as to the measure of damages. It is urged on behalf of the defendants that the order confirming the report of the receiver and directing the disbursement of funds in his hands amounts to an adjudication of the rights of the plaintiff. This contention cannot be sustained, except upon the theory that the plaintiff was compelled to litigate in that action her right to the damages involved in this action, and it would seem that a bare statement of the proposition ought to be sufficient to dispose of that question. The accounts of the receiver are not involved, nor was there involved in the accounts of the receiver any question of damages which might arise by reason of his wrongful appointment. The appointmentof a receiver adjusts and determines the right of no party to the proceedings, and grants no final relief, directly or indirectly. Vila et al. v. Grand Island Electric Light, Ice & Cold Storage Co. et al. (Neb.) 97 N. W. 613, 63 L. R. A. 791. The discharge of the receiver and the settlement of his accounts was a necessary result of the appointment, and was, of course, conclusive as between the parties litigant and the receiver himself, but did not have the effect of determining the question of damages as between the litigants, any more than the dissolution of an injunction or the discharge of an attachment would determine the question of damages in actions where relief by injunction or attachment is sought.

By section 269 of the Code of Civil Procedure it is provided that every order appointing a receiver shall require the applicant to give a good and sufficient bond, conditioned to pay all damages which the other parties to the suit, or any of them, may sustain by reason of the appointment of a receiver, in case it shall be finally decided that the order ought not to have been granted. This provision is similar in effect to those provisions of our Code requiring bonds to be given in attachment proceedings and upon the procuring of temporary orders of injunction, and, while the liability on the bond follows as a result of the final judgment in such cases, the extent of such liability and the measure of damages remains to be determined in an independent action on the bond. That is equally true in cases of a bond given by the applicant for the appointment of a receiver. The case is not one where the appointment of a receiver was acquiesced in or agreed upon by the parties, or where it was finally determined that the appointment was justified. The appointment in this case was resisted at the outset, and the right to such appointment was contested at every stage of the proceedings; and, while the rights and liabilities of the receiver were determined upon the settlement of his account, the liabilities of the parties to each other, growing out of the appointment, were in no sense determined or adjudicated. Authorities are cited to the effect that the plaintiff should not be held responsible for losses which result from the wrongful acts or negligence of the receiver. They are not applicable, however, to this case, where the wrong does not arise out of the misconduct of the receiver. The damages here result from the wrongful appointment procured at the instance of the defendants Joslin.

At the trial the plaintiff was permitted to prove, over the objections of the defendants, the rental value of the premises during the period when the receiver collected the rents and profits and the value of the services of counsel employed in her behalf in procuring the vacation of the order appointing the receiver. It is urged that the rental value of the premises was not a proper measure of damages under the allegations of the petition, and that attorney's fees in procuring the vacation of the order should not be considered as an element of damages. The petition contains a recital of the appointment of the receiver, a copy of the bond, the appeal to the Supreme Court, and the order there made, the mandate of the Supreme Court requiring the district court to carry...