Lammon v. Giles

• Citation: 3 Wash.Terr. 117,13 P. 417
• Parties: LAMMON v. GILES.
• Decision Date: 31 January 1887
• Court: United States State Supreme Court of Washington

13 P. 417

3 Wash.Terr. 117

LAMMON v. GILES.

Supreme Court of Territory of Washington

January 31, 1887

On petition in proceedings in insolvency by Ezekiel Giles receiver of the estate of M. W. Willis. Judgment for petitioner. Respondent appeals.

J. W. Robinson, for plaintiff in error.

C. W. Hartman, for defendant in error.

TURNER J.

On the eighth day of August, 1884, one M. W. Willis filed his petition in insolvency in the district court of the Second judicial district, at Olympia. The appellant was a creditor of said insolvent in the sum of about $2,000, secured by mortgage on a large amount of personal property, which, at the time of the commencement of the insolvency proceeding was in the possession of the insolvent. About the same time numerous attachment suits were commenced by unsecured creditors against the insolvent, and this personal property was attached and taken possession of by the sheriff. At this juncture the insolvent applied to the court for the appointment of a receiver to take possession of his property including that attached by the sheriff, to hold and manage the same, and apply it as the court in the insolvency proceeding should direct, which application the court granted. Ezekiel Giles, the appellee, was appointed such receiver. The receiver went into possession of the property about August 19, 1884, and continued to hold and manage the same until some time in December of the same year, and on final report was discharged from his trust and allowed the sum of $460 as compensation for his services. No order was made at the time, as far as we can gather from the record, fixing the source from which this sum was to be derived; but it was probably supposed that the estate of the insolvent would be sufficient, after the claims of secured creditors should have been paid, to pay the receiver's claim.

On the twenty-fourth day of November, 1884, the appellant, by leave of court, commenced proceedings to foreclose his mortgage and on the eighth day of December following obtained judgment in the foreclosure suit. The order of sale specified, as the property to be sold, the particular property in the hands of the appellee as receiver, and it was provided therein that the mortgagee might become the purchaser. At the sale the mortgagee purchased the property for $820, paid the costs of the clerk and sheriff in the mortgage suit, and caused to be filed with the clerk his receipt in satisfaction of the judgment in the foreclosure suit, and, as we gather from the statement of facts, in full satisfaction thereof. It does not appear that the court up to this point, in either of the proceedings, had considered or made provision for the satisfaction of the receiver's claim. About this time, however, on December 28th, the court, on the application of one of the original attaching creditors, made an order in the foreclosure suit that the sheriff pay into the registry of the court the proceeds of the mortgage sale. What this was for, or how the attaching creditor obtained any standing in the case to entitle him to such order, does not appear in the statement of facts. The sheriff for return to said order set out in detail what had been received from the purchaser in satisfaction of his bid, as hereinbefore stated.

Matters rested thus until September 19, 1885, when, it appearing that the estate of the insolvent was insufficient to pay the claim of the receiver by the sum of $375, the latter filed his petition in the insolvency suit, praying that the appellant, as the mortgagee of the property and the purchaser at the mortgage sale, be required to pay into the registry of the court the amount for which said property was struck off to him at the sale, and that the claim of petitioner for compensation as receiver, in holding and preserving said property, be declared a prior lien on said fund, and first paid out of the same. A rule to show cause why such an order should not be made was served on the appellant, and on the return-day he made sworn return, setting forth the matters hereinbefore stated, and in addition denied that he had ever consented to the appointment of the receiver, or to the delivery of the property to him.

At the hearing, on the petition and return, the judge made an order that the appellant pay into court, within 10 days, the sum of $375 out of the proceeds of sale of the mortgaged property, and that the same be applied to the payment of the receiver's claim. The appeal is prosecuted from this order.

The statement of facts shows that leave was given the petitioner by the court, at the time of making the order, to file affidavits denying the matter set forth in Lammon's return, "for the...