Weber v. Empire Holding Corp.
| Decision Date | 26 February 1935 |
| Citation | 41 P.2d 1084,149 Or. 503 |
| Parties | WEBER v. EMPIRE HOLDING CORPORATION et al. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.
Action by Gus Weber against the Empire Holding Corporation and Robert G. Dieck, former receiver. From an order, Robert G Dieck appeals.
Reversed.
Bradley A. Ewers, of Portland (Ewers & Jensen, of Portland, on the brief), for appellant.
F. M Phelps, of Portland (Phelps & Burdick, of Portland, on the brief), for respondent.
On May 5, 1932, Robert G. Dieck, the appellant herein, was appointed as receiver pendente lite of the property of the defendant Empire Holding Corporation, an insolvent corporation, and served as such until November 10, 1933, when he resigned. On September 21, 1933, he filed a report stating that he had received the sum of $5,225.99 and had disbursed the sum of $4,728.23 and had a balance of cash on hand in the sum of $497.76. Among the disbursements mentioned in his report for which he claimed to be entitled to credit were items aggregating $1,100 for receiver's fees, items aggregating $710 for office rent, and other items for telephone services and the repair of a typewriter. In accepting his resignation the order directs: "That said Robert G. Dieck shall forthwith surrender and turn over to Merle G. Campbell the receiver herein, appointed for and in his place and stead, all of the property and assets of said receivership, as well as all cash on hand, and shall turn over and pay to said receiver, in addition to the cash on hand, and as shown by the report of said Robert G. Dieck, submitted to the above entitled Court all sums of money paid to said receiver and not authorized by an order of the above entitled court, and especially said sums paid as receiver's fees and purporting to be for the use of the office of the said Robert G. Dieck and for the payment of said Robert G. Dieck's telephone service, and upon the failure of said Robert G. Dieck to forthwith transfer and pay to said Merle G. Campbell, receiver said sums, that said Merle G. Campbell, receiver, shall forthwith take the necessary steps to collect said sums from Robert G. Dieck or from the bondsmen of said Robert G. Dieck in the manner provided by law."
Prior to the filing of said report, the trial court had allowed Dieck $900 as receiver's fees and, after the entry of the order, in partial compliance therewith, Dieck delivered to the new receiver the cash on hand and paid to him the additional sum of $300, and delivered all property and assets in his hands, but failed to pay over any other sums of money.
On January 19, 1934, Dieck filed a petition for additional fees, setting forth, among other things, that the aggregate time actually expended in the performance of his duties was 130.2 days, that the services were reasonably worth the sum of $20 per day, and that he had necessarily incurred expenses in the sum of $610 "for office rent, telephone, stenographer, typing of various kinds and other miscellaneous office expenses," and also that he had attended as receiver the trials of five cases which were tried in Hillsboro, McMinnville, Medford, and Portland, and praying that a time be set for the hearing of his account and that he be allowed additional compensation for his services as receiver.
On January 22, 1934, an unverified answer to said petition was filed by the new receiver, alleging in substance that Dieck was not entitled to make any charge for office rent, telephone services, or typewriter repairs, and that his account was padded, and objecting to the allowance of any of said items. The record does not disclose that this answer was ever served on Dieck, but it is claimed that, because he failed to reply thereto, he admitted the truth of the charges thus made. In matters of this kind, there is no requirement that formal pleadings should be filed by either party nor was it at all necessary that the new receiver should file any answer to Dieck's petition. His failure, therefore, to file a reply to said answer does not constitute an admission against him and is of no importance whatever.
On March 16, 1934, without any hearing whatever being granted to Dieck and without the taking of any testimony either for or against the petition, the court entered an additional order, stating that Dieck had withdrawn from the funds in his hands as receiver the sum of $673.25 over and above all sums authorized by the court or repaid to the new receiver, and ordered him immediately to pay said sum over to the new receiver, and, upon his failure to make such payment, again directed the new receiver to commence proceedings to recover said sum from the National Surety Corporation, the surety on Dieck's bond. The order further directed that Dieck be not permitted to present any claim for additional fees until said sum had been paid. The order thus made was an ex parte order and entered without notice to Dieck.
Thereafter, and on May 9, 1934, through his attorneys, Dieck filed a motion to set aside and vacate the order of March 16, 1934, and to grant to the petitioner the right to be heard and prove his account. This motion was supported by his own affidavit, in which he stated, in effect, that prior to the entry of the order objected to a time had been fixed for the hearing of his petition, and that at said time he was present with his attorneys and witnesses, but the court had refused to permit any hearing thereon. After the filing of said petition and affidavit, an affidavit in opposition thereto was filed by F. M. Phelps, stating among other things:
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