St. Louis, K. & S. R. Co. v. Wear

• Decision Date: 30 June 1896
• Court: Missouri Supreme Court
• Parties: ST. LOUIS, K. & S. R. CO. et al. v. WEAR et al.

36 S.W. 658

135 Mo. 230

ST. LOUIS, K. & S. R. CO. et al. v. WEAR et al.

Supreme Court of Missouri.

June 30, 1896.

RECEIVERS — COMPENSATION — INVALID APPOINTMENT.

1. Where the order appointing a receiver is adjudged to be unauthorized, the receiver is not entitled to compensation from the funds coming into his hands by virtue of the order.

2. In prohibition proceedings to check an order appointing a receiver, the receiver, after judgment, cannot object that he was an improper party defendant, and therefore claim attorney fees.

Sherwood, J., dissenting.

In banc. On receiver's motion for allowance.

For former opinion, see 36 S. W. 357.

M. R. Smith, for plaintiffs. W. S. C. Walker and Boyle, Priest & Lahman, for defendants.

PER CURIAM.

In the receiver's return to the peremptory writ, it is stated that he has delivered to the plaintiff company all the property in his hands as receiver, except about $1,455, which he holds subject to the order of the court; and he asks whether he may be allowed therefrom his costs, and a reasonable attorney's fee, for the reason that he has no personal interest in the controversy, was only an appointee of the circuit court, and was not, as he is advised, a necessary party to this action.

1. A receiver's right to compensation and allowances for expenses does not depend upon the correctness of the order of appointment, where the appointment has been made by a court having general jurisdiction to take such action. But if the appointment is merely in excess of the power of the court, because the facts and circumstances do not authorize the appointment as made, and the enforcement of the order is therefore subjected to the check of a writ of prohibition, the receiver is not entitled to retain possession of any part of the property coming to his hands by virtue of the order. The order of appointment having been adjudged to be unauthorized, he cannot claim compensation for his services out of the fund or property received by him under the order. His claim for allowances, etc., must be otherwise made, in an accounting with the court in the suit wherein he was appointed. The prohibition in this case does not interfere with the general course of Mr. Kerfoot's suit in Dunklin county. It forbids action upon the original orders for the receivership, and annuls what was done under those orders; but it leaves the action pending as before. The receiver's application for allowances, etc., cannot properly be granted in this court...