Ogden City v. Bear Lake & River Waterworks & Irrigation Co.

• Decision Date: 05 December 1898
• Citation: 18 Utah 279,55 P. 385
• Parties: OGDEN CITY, RESPONDENT v. BEAR LAKE & RIVER WATER WORKS & IRRIGATION CO., BEAR RIVER IRRIGATION & OGDEN WATER WORKS COMPANY, SAMUEL M. JARVIS AND ROLAND R. CONKLIN
• Court: Utah Supreme Court

55 P. 385

18 Utah 279

OGDEN CITY, RESPONDENT v. BEAR LAKE & RIVER WATER WORKS & IRRIGATION CO., BEAR RIVER IRRIGATION & OGDEN WATER WORKS COMPANY, SAMUEL M. JARVIS AND ROLAND R. CONKLIN

Supreme Court of Utah

December 5, 1898

Appeal from the District Court of Weber County, Hon. Ogden Hiles Judge.

Appeal by the Bear River Irrigation and Ogden Water Works Co. from the order of the court below, approving the report of the receiver and allowing various items thereof, and ordering them paid out of the funds in the receiver's hands.

Cause remanded.

Messrs Rogers & Johnson, and Messrs. Bennett, Harkness, Howat Bradley & Richards, for appellant.

The rule appellant contends for is that when a receiver has been appointed upon application of plaintiff, and the application is resisted by the defendant, and upon appeal his appointment is set aside and the property ordered returned to the defendant, then the compensation of the receiver and all expenses incurred incident to his appointment, additional to the ordinary and usual expenses should not be paid out of the fund but should be paid by the plaintiff who procured the appointment. Weston v. Watts, 45 Hun. 219; Pittsfield Nat. Bank v. Bayne et al., 140 N.Y. 321; Cooper v. Shirley, 75 F. 168; Highley v Deane, 64 Ill.App. 389; French v. Gifford, 31 Iowa 428; Willis v. Sharp, 12 N.Y.S. 120; St. Louis v. Gas Light Co., 11 Mo.App. 237; Howe v. Jones, 60 Iowa 70; St. Louis, etc., R. Co. v. Wear, 36 S.W. 658; Brundage v. Savings & Loan Assn., (Wash.) 39 P. 669; Moyers v. Corner, 22 Fla. 422.

C. C. Richards, Esq., J. H. Macmillan, Esq., and E. M. Allison, Esq., for respondent.

We believe the better rule to be that inasmuch as the receiver is appointed to manage and preserve the property pending the litigation, for the benefit of those ultimately adjudged to be entitled to it, the cost of doing this, including his commissions, should be made a charge upon the property itself and paid out of its proceeds, regardless of who finally succeeds. Espuella, etc. Co. v. Bindle, 32 S. W., 582. Hembree v. Dawson, 18 Ore., 474. S. C., 23 P. 264. Hopfensack v. Hopfensack, 61 How. Pr., 498. New Birmingham, etc., v. Blevins, 34 S. W., 834.

ZANE, C. J. BARTCH, J. and MINER, J., concur.

OPINION

ZANE, C. J.

This is an appeal by the Bear River Irrigation & Ogden Water Works Company, a defendant, from the order of the court below approving the report of Thomas D. Dee, Receiver, and allowing the various items thereof, and ordering them to be paid out of funds in his hands.

As to the motion of plaintiff to dismiss this appeal for the reason, as alleged, the order appealed from was not a final judgment, we are of the opinion the order requiring the compensation to the receiver and I. N. Pierce, and the payment to Griffin and the Ogden Standard, out of funds in the receiver's hands was final, and therefore appealable, and we therefore overrule it.

It appears from the record, that Mr. Dee was appointed receiver pendente lite of the Water Works system in Ogden City on January 17, 1898, on the application of plaintiff, Ogden City; that he immediately qualified and took possession and charge of the system and its buildings and managed and operated it until April 20, 1898; that the order appointing him receiver was reversed by this court, with directions to the lower court to order a return of the property to the appellant, which was done; that on April 27, 1898, Dee filed his report, as such receiver, showing a collection of water rents to the amount of $ 11,247.07, and that he had disbursed $ 1,266.45 for labor, $ 148.53 for material, and $ 90.50 for general expenses, and in addition he asked the court to allow him $ 750, out of the funds as compensation as receiver, and to I. N. Pierce as inspector, $ 219.30; and S. G. Griffin for a stamp, $ 3.25; and the Ogden Standard for advertising, $ 14.00. To the allowance of these last four items, the appellant objected, and it assigns the order of the court allowing them and ordering their payment out of the funds as error.

That the compensation to the receiver and to Griffin were customary and reasonable for their time and services, and that the charges for the stamp and publication were...