White v. Allen

• Decision Date: 28 March 1889
• Citation: 11 S.W. 364
• Parties: WHITE et al. v. ALLEN et al.
• Court: Kentucky Court of Appeals

11 S.W. 364

WHITE et al. v. ALLEN et al.

Court of Appeals of Kentucky.

March 28, 1889

Appeal from circuit court, Fayette county; J. H. BEAUCHAMP, Special Judge.

Appeal by George G. White and others from an order allowing T. N Allen, receiver, the sum of $6,000 as compensation for his services.

H. M Buford, Mat. Walton, C. H. Stoll, and A. H Ward, for appellants.

Wm Lindsay and J. D. Hunt, for appellees.

HOLT J.

This appeal questions the correctness of an allowance to a receiver. Section 8, c. 75, Gen. St., which relates to master commissioners, provides: "He shall not be allowed more than three dollars per day for each day he shall be necessarily engaged in the discharge of his duties, except by consent of parties or their attorneys." Section 14 of the same chapter, relative to other commissioners and receivers, says: "Their compensation shall be the same as that of a master commissioner, and ascertained and allowed in the same manner, except in the case of collecting money receiving, holding, renting, or selling property, the court may, upon proper proof, make to the master commissioner, receiver, or other commissioner an allowance of a reasonable amount, greater than three dollars per day." This case falls within the exception named; and evidence having been heard, as the judgment shows, the conclusion of the lower court must be sustained without inquiry into the merits of the question, if it be true, as the appellees contend, that there is properly no bill of exceptions in the record. It is only by means of it that the action of the lower court can be reviewed. In its absence, we must presume the judgment to be correct. Section 334 of the Civil Code provides: "The party objecting must except when the decision is made; and time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term to be fixed by the court." It was held in Railroad Co. v. Turner, 81 Ky. 489, that where time is given until a certain day in the succeeding term to present a bill, and that day passes without notice of the matter, the opportunity for filing is lost. In this case, however, the judgment was rendered on June 26, 1885, and time given until the first day of the next term to file the bill. At the time fixed, November 16, 1885, the appellants, as the orders of the court show, tendered their bill, and asked to file it. December 23, 1885, they renewed the motion, and it was continued to the next special term. December 31, 1885, the motion was continued to the first day of the February term, 1886. February 1, 1886, they again renewed the motion, and again did so on June 14, 1886, when it was continued to the next special term; and at last on July 3, 1886, it was signed by the judge, and made a part of the record. None of this delay appears to have been asked or occasioned by the appellants, save that from the time when the judgment was rendered until the first day of the succeeding term. They were given the right, however, by an order of the court, to indulge in a bad practice, and to present and file the bill at the time last named; and they did then present it, and it must be presumed the court then took charge of it. None of the continuances of the motion to file it were of their asking, and in fact they appear to have been almost importunate in pressing it to a disposition. We must presume from the character of the orders relative to the matter that the delay was upon the part of the court, and that it had the bill under consideration. The appellants had done all within their power, and should not be prejudiced by delay upon the part of the judge. When taken under consideration by him, they had no control over it, and the tender of it in court within the time allowed should be regarded as equivalent to a filing of it. Meaux v. Meaux, Id. 475.

Our conclusion upon this question requires us to now consider the merits of the case, and in doing so we recognize the proper rule to be, especially in a case of this character, that error upon the part of the court below is not to be presumed but, upon the contrary, every presumption, fairly deducible from the record, should be indulged in favor of its action. In March, 1882, D. A. Aiken was operating a distillery under a lease from the owner, one Jemmons, which by its terms was to expire in December, 1882. At the time first named it was destroyed by fire, bringing financial ruin to Aiken; and his creditors thereupon sued out attachments, which were levied upon his leasehold interest in the distillery premises, and any whisky in the warehouses connected therewith belonging to him. The indebtedness due him for the storage of whisky of other parties in the warehouses was also attached. The attachment suits having been consolidated, the appellee T. N. Allen was upon motion of the attaching creditors appointed receiver on June 9, 1882, and acted as such from the following day until June 21, 1884, or for a period of a few days over two years. In August, 1882, the appellant George G. White purchased the distillery premises from Jemmons, and about the same time obtained from Aiken a release of the remaining period of time covered by his lease....