Reneau v. Lawless

• Decision Date: 06 March 1909
• Docket Number: 15,444
• Citation: 79 Kan. 553,100 P. 479
• Parties: GEORGE W. RENEAU v. JOHN E. LAWLESS
• Court: Kansas Supreme Court

100 P. 479

79 Kan. 553

GEORGE W. RENEAU v. JOHN E. LAWLESS

No. 15,444

Supreme Court of Kansas

March 6, 1909

Decided January, 1909.

Error from Rawlins district court; ABEL C. T. GEIGER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RECEIVERS--Eligibility--Acquiescence in Appointment--Waiver. In a suit to dissolve a partnership and to close up the partnership business an accounting was had, after which the court, without objection appointed the defendant partner as receiver to dispose of the partnership assets. After the receiver had acted for more than a year without objection, and the estate was mainly settled, the plaintiff raised the question that the defendant was an interested party and therefore disqualified to act as receiver. Held, that the long acquiescence of the plaintiff in the appointment is tantamount to consent, and that he could not afterward question the legality of the appointment.

Gomer Thomas, for plaintiff in error.

J. L. Finley, for defendant in error.

OPINION

JOHNSTON, C. J.:

This was a suit for the dissolution of a partnership, an accounting of the partnership business, and, incidentally, the appointment of a receiver to sell the partnership assets. The suit was brought by George W. Reneau against his partner, John E. Lawless, in which Reneau charged Lawless with mismanagement of the business and misappropriation of money derived from the sale of the partnership property. Upon the issues joined a referee was appointed, who took testimony, examined the accounts and condition of the partnership business, and reported to the court that the allegations of the plaintiff's petition were unfounded, and, instead of the defendant having withdrawn too much money from the business, that the plaintiff himself was indebted to the firm. No attack was made upon this report, and on the findings of the referee the court, at its May term, 1905, appointed Lawless receiver to sell and dispose of the partnership property and pay the partnership indebtedness. So far as the record discloses no objection was made to the appointment.

At the following November term the matter was again before the court, when an order was made directing the receiver to accept the highest and best bid for the real estate of the firm, but to allow the plaintiff, Reneau, ten days in which to obtain a better offer, and the receiver was further directed to take the necessary steps to close up the estate and make a final report at the next succeeding term of court. On March 20, 1906, during the next term, the receiver made a report of the sales of the property, of collections made and debts paid, stating that there was still some property which had not been sold. Reneau first filed a motion to require the receiver to make a fuller report, showing why certain accounts had not been collected and stating more specifically what had been done toward the sale of the real estate. The motion was denied. Then followed another motion asking that the receiver be discharged, on the ground that he was an interested party and therefore not qualified to act as receiver, and for the additional reason that he had not faithfully performed his duties, but the motion was not allowed, and upon this ruling error is alleged. No objection was made to the findings of the referee, there was no motion for a new trial presented, and no objection was raised to the judgment entered against the plaintiff. He insists, however, that there should be a reversal because Lawless was an interested party and was therefore disqualified to serve in the capacity of receiver.

Ordinarily the court will not appoint as receiver a party to the controversy or one interested in the litigation, and the code expressly provides that "no party or attorney or person interested in an action shall be appointed receiver therein." (Civ. Code, § 255.) This provision requiring that a receiver shall be a disinterested agent of the court and parties only declares a general rule of law which existed when the statute was enacted. If when...