Terry v. Martin.

• Decision Date: 04 January 1893
• Parties: TERRY et al.v.MARTIN.
• Court: New Mexico Supreme Court

7 N.M. 54

32 P. 157

TERRY et al.

v.MARTIN.

Supreme Court of the Territory of New Mexico.

Jan. 4, 1893.

Appeal from district court, Socorro county; A. A. Freeman, Judge.

J. S. Martin presented a claim for services performed by him as receiver of certain property, for attorneys' fees, etc., pending litigation between John W. Terry and others against Perkins and Southgate. The claim was disallowed, and he appeals. Affirmed.

A receiver, placed in charge of the property and effects of a store, pending litigation in reference thereto, being an officer of the court in whose custody such property and effects are while under his control, has no right, in the absence of express authority from the court, or any showing that the character of the business was such as to imperatively demand it, to open and continue the business of the store, and an office in connection therewith, and pay rent, clerk hire, etc., and a claim presented by him for such rent, services, etc., will be properly refused.

T. B. Catron, J. S. Sniffen, and W. E. Kelley, for appellant.

James G. Fitch, for appellees.

SEEDS, J.

From the record in this case it appears that, some time in 1886, certain parties, by the names of Perkins and Southgate, were engaged in the drug business in Socorro, in this territory. They became indebted to one Terry, and possibly others, and it became necessary to place their property in the hands of a receiver, pending the litigation in reference thereto. In November, 1886, the court appointed one Dr. J. S. Martin the receiver of the property. He took possession of the goods, and made an inventory of the same, according to which the drugs and fixtures were worth about $2,500. It appears that the receiver opened the store, and began selling goods from the store, and that he occasionally made purchases to keep the stock intact. We have been unable to find any specific authority for such proceedings upon his part, and, if he possessed it at all, it must have resulted by implication from his position, or from his original appointment, which is not set out in the record. It also appears that he used the store as his office, and that he hired his son, who was not a druggist, to be a clerk in the store, at a salary of $45 per month. In the early part of 1887, and before the receiver had opened the store, the several parties to the litigation entered into an agreement to have the property sold, and the court made an order to that effect. The order contemplated a sale in bulk, and an effort was made to comply with the order, but the receiver refused the bid, for reasons growing out of the objections of Terry, as he insists, but which Terry denies. Afterwards the receiver opened up a retail drug store, as before recited, and ran the same for four months, when the parties to the litigation again got together, and agreed to have the drugs stored in another building, as the expenses were eating up the stock. The court made an order accordingly. The record shows...