Kilpatrick v. Horton

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtSCOTT, JUSTICE.
Citation89 P. 1035,15 Wyo. 501
Decision Date07 May 1907
PartiesKILPATRICK ET AL. v. HORTON, RECEIVER

89 P. 1035

15 Wyo. 501

KILPATRICK ET AL.
v.
HORTON, RECEIVER

Supreme Court of Wyoming

May 7, 1907


ERROR to the District Court, Weston County, HON. CARROLL H. PARMELEE, Judge.

The material facts are stated in the opinion.

Motion granted and petition in error dismissed.

N. K. Griggs and W. S. Metz, for plaintiffs in error.

The ex parte order allowing compensation to the receiver was without jurisdiction. The stockholders of the insolvent corporation were entitled to notice of the receiver's application. (Alderson on Receivers, 859; Bank v. Crysler, 67 F. 388; Bank v. Frankenthal, 55 Ill.App. 400; Hayden v. Trust Co., 55 id., 241; Joralman v. McPhee, 76 P. 922.) No exception was necessary, since the proceeding was unauthorized, and the parties were without notice. (R. R. Co. v. Wier, 135 Mo. 230; Strong v. Allen, 44 Ill. 428; Mfg. Co. v. Bank (Utah), 51 P. 151; In re Pelican Co. (La.), 19 So. 686.) The allowance was improper because in violation of the express waiver of the receiver of more than nominal compensation. (Bassett v. Miller, 8 Md., 548; Steele v. Holliday, 18 Ore. 517 (25 P. 77); Polk v. Johnson (Ind.), 65 N.E. 536; McCaw v. Blewitt, 2 McCord Eq., 90.) The receiver being a stockholder, his appointment was illegal without the consent of all persons interested, and the allowance of compensation consequently illegal and void. (Polk v. Johnson, supra; R. S. 1899, Sec. 4055.) The allowance was grossly excessive. (Swartz v. Oil Co., 25 A. 1019.) The attorney fees allowed were also excessive. It was improper to allow compensation for the entire services of the receiver before the close of the receivership. (Maxwell v. Mfg. Co., 82 F. 214.) The allowance was made improperly without evidence or the presence of necessary parties or any intelligent investigation. This court should reduce the allowance to a nominal amount. (In re Angel (Mich.), 91 N.W. 611.) The receiver is not entitled to compensation for the collection of money by one previously in charge and merely turned over to him. (Atty. Gen. v. Ins. Co., 32 Hun, 223.) The order allowing compensation was a final order and reviewable. (R. S. 1899, Sec. 4247; Grant v. Court, 106 Cal. 325; Trustees v. Greenough, 105 U.S. 527; Thompson v. Lumber Co., 5 Wash. 530.) The following additional authorities support the right of the appellants to notice before the allowance of the receiver's compensation: George v. Middough, 62 Mo. 551; Pratt v. Rice, 7 Nev. 123; Chaddie v. Wolfe, 28 Ky. 670; Murray v. Tardy, 19 Ala. 713; Sturgis v. Echols, 46 Ala. 61; McLendon v. Jones, 8 Ala. 298; Doswell v. Stewart, 11 Ala. 629; Benedict v. Cozzens, 4 Cal. 381.

Stotts & Blume and M. B. Camplin, for defendant in error.

An ex parte order is not appealable. (State v. District Court, 52 Minn. 283; Aldinger v. Pugh, 57 Hun, 181; Gibson v. Martin, 8 Paige, 481; Skidmore v. Davis, 10 Paige, 316; In re Johnson's Est., 27 Hun, 538; In re Dunn, 59 Hun, 626; In re Dunn, 37 N.Y. 802; Hyslop v. Powers, 9 Paige, 322; Savage v. Relyea, 3 How. Pr., 276; Lindsey v. Sherman, 5 How. Pr., 308; People v. Common Council, 30 Hun, 636; Ramsour v. Young, 26 N. C., 133.) The proper procedure in such case is a motion to vacate, and an appeal from the ruling on the motion. (Sheck v. Ingraham, 4 Hun, 67; 5 Hun, 397; Farmers L. & T. Co. v. R. R. Co., 1 McCrary, 352; Wooster v. Bateman, 24 N.Y.S. 113; Bean v. Tonnelle, 24 Hun, 353.) A receiver's compensation is a part of the costs, and taxable as such. (High on Receivers (2d Ed.), 796.) If notice was essential to jurisdiction, the subsequent appearance of the complaining parties cured the defect of want of notice. (Life Assn. v. Lempe (Kan.), 19 P. 337; Mayer v. Mayer (Ore.), 39 P. 1002; York v. York (N. D.), 55 N.W. 1095; Leake v. Gallogly (Neb.), 52 N.W. 825; Marsden v. Soper, 11 Ohio St. 503.) The compensation of receiver is within the discretion of the court. (State v. Bank (Neb.), 85 N.W. 391; Bank v. Badget (Wis.), 79 N.W. 21; 23 Ency. L. (2d Ed.), 1103; 2 Ency. Pl. & Pr., 92.) The discretion will not be reviewed unless it is shown to have been abused. It cannot be reviewed in the absence of the evidence. (Imp. Co. v. Bradley, 6 Wyo. 171; Schloredt v. Boyden, 9 Wyo. 392.) Notice is not jurisdictional in the allowance of a receiver's compensation. The matter having been subsequently heard on application of the complaining parties, there is no prejudice in the original order. (Thomas v. College Co. (Cal.), 43 P. 965; Rivers v. Olmstead, 66 Iowa 186.) The plaintiffs in error are bound by the order refusing to vacate until reversed. (Fear v. Heichert (Minn.), 24 N.W. 319; Warren v. Dick (Neb.), 22 N.W. 462; 2 Ency. Pl. & Pr., 655, 656.) No prejudicial error being shown the court will not reverse. (State v. Board, 7 Wyo. 161; Foote v. Smith, 8 Wyo. 510.)

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

[15 Wyo. 504] SCOTT, JUSTICE.

The Bank of Newcastle was a corporation duly created, organized and doing business under the laws of the state at the City of Newcastle, Weston County, Wyoming, and had been so engaged for many years prior to December 5, 1903. On said last mentioned day it failed and in pursuance of the statute in such case made and provided it was taken in charge by the State Examiner, and remained in his charge until March 17, 1904, when, upon petition of the Attorney General and due proceedings thereon, it was adjudged to be insolvent, and Fred Horton was appointed as receiver to take charge of all its property and to wind up its affairs upon his subscribing to and filing the oath, and the filing and approval of an undertaking in a fixed amount as prescribed by law. Horton qualified as such receiver and entered upon the discharge of his trust. He was a stockholder in the bank and before qualifying he filed a written waiver of statutory fees, in which he bound himself to abide such order as the court should make with reference to allowance of compensation for his services as such receiver. There was no objection filed with the court to his appointment at the time it was made.

Two orders were made by the court relating to the receiver's compensation: First, an order on September 5, 1904, allowing the receiver, upon his petition and application therefor, the sum of $ 1,500 as compensation. Secon...

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8 practice notes
  • National Surety Co. v. Morris, 1307
    • United States
    • United States State Supreme Court of Wyoming
    • December 21, 1925
    ...170 P. 760; Am. Bonding Co. vs. Reynolds, supra; a statutory bank receiver is an arm of the court; 5152 C. S. Kilpatrick vs. Horton, 15 Wyo. 501; Riordan vs. Horton, Supra; his possession is that of the court; Casualty vs. McConnell, supra; State vs. Bank, 219 P. 652; Ry. Co. vs. Humphrey, ......
  • Palm v. Palm, No. 89-109
    • United States
    • United States State Supreme Court of Wyoming
    • December 29, 1989
    ...& A. Miller, Federal Practice and Procedure § 2608 at 794 (1971). This court similarly, in the early Wyoming case of Kilpatrick v. Horton, 15 Wyo. 501, 506-07, 89 P. 1035, 1036 (1907), The question of the amount if any of such allowance in the absence of a statute fixing them [receivership ......
  • Sioux City Seed Co. v. Montgomery, 1596
    • United States
    • United States State Supreme Court of Wyoming
    • October 14, 1930
    ...prays for general relief. It is more than a special appearance, and is in fact a general appearance. 4 C. J. 1341; Kilpatrick v. Horton, 15 Wyo. 501; Swocker v. Reynolds, 92 A. 76. The ruling of the trial court is not ground for reversal. Pardee v. Kuster, et al., 15 Wyo. 368. The burden of......
  • James v. Lederer-Strauss & Co., 1137
    • United States
    • United States State Supreme Court of Wyoming
    • February 14, 1925
    ...Witney v. Karner, 44 Wis. 363; before opening a judgment the Court must first adjudge that a valid defense exists, Kilpatrick v. Horton, 15 Wyo. 501; the burden is on the parties seeking relief; Phillip v. Samuel, 76 Mo. 657; Advocate v. Dell Ara, 84 S.W. 443; Tompkins v. Lang, 54 Ill.App. ......
  • Request a trial to view additional results
8 cases
  • National Surety Co. v. Morris, 1307
    • United States
    • United States State Supreme Court of Wyoming
    • December 21, 1925
    ...170 P. 760; Am. Bonding Co. vs. Reynolds, supra; a statutory bank receiver is an arm of the court; 5152 C. S. Kilpatrick vs. Horton, 15 Wyo. 501; Riordan vs. Horton, Supra; his possession is that of the court; Casualty vs. McConnell, supra; State vs. Bank, 219 P. 652; Ry. Co. vs. Humphrey, ......
  • Palm v. Palm, No. 89-109
    • United States
    • United States State Supreme Court of Wyoming
    • December 29, 1989
    ...& A. Miller, Federal Practice and Procedure § 2608 at 794 (1971). This court similarly, in the early Wyoming case of Kilpatrick v. Horton, 15 Wyo. 501, 506-07, 89 P. 1035, 1036 (1907), The question of the amount if any of such allowance in the absence of a statute fixing them [receivership ......
  • Sioux City Seed Co. v. Montgomery, 1596
    • United States
    • United States State Supreme Court of Wyoming
    • October 14, 1930
    ...prays for general relief. It is more than a special appearance, and is in fact a general appearance. 4 C. J. 1341; Kilpatrick v. Horton, 15 Wyo. 501; Swocker v. Reynolds, 92 A. 76. The ruling of the trial court is not ground for reversal. Pardee v. Kuster, et al., 15 Wyo. 368. The burden of......
  • James v. Lederer-Strauss & Co., 1137
    • United States
    • United States State Supreme Court of Wyoming
    • February 14, 1925
    ...Witney v. Karner, 44 Wis. 363; before opening a judgment the Court must first adjudge that a valid defense exists, Kilpatrick v. Horton, 15 Wyo. 501; the burden is on the parties seeking relief; Phillip v. Samuel, 76 Mo. 657; Advocate v. Dell Ara, 84 S.W. 443; Tompkins v. Lang, 54 Ill.App. ......
  • Request a trial to view additional results

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