Crouse v. Bedell

Opinion by W. D. Porter, J., The plaintiff filed a bill in equity against the defendants, praying for the dissolution of the firm of Bedell & Crouse, the appointment of a receiver of the assets, property, accounts and' credits of said firm and an accounting of the partnership dealings. The court, on October 21, 1898, made a preliminary order appointing Fletcher Coleman receiver of the firm and restraining the defendants from exercising further control over the firm property. Coleman filed his bond as receiver, in accordance with the decree of the court, which bond having been duly approved, he took charge of the property of Bedell & Crouse and rendered services and expended money in the execution of his trust. The parties, plaintiff and defendants, on December 2, 1898, entered into a stipulation and agreement, which agreement was filed of record and approved by the court, under the terms of which the business of the firm was to be continued and carried on by the receiver. Fletcher Coleman, not desiring to continue as receiver under tins arrangement, with the consent of the court, resigned. Thereupon, by agreement of the parties, E. E. Tait, Esq., was appointed receiver, and continued to act as such. Fletcher Coleman subsequently filed a statement of his disbursements and expenditures as receiver .and the court granted a rule to show cause why the same should not be paid out of any moneys that might come into the hands of Tait, who had succeeded Coleman as receiver. The defendants opposed the payment of these expenses, the court made the rule absolute, and from that order the defendants took this appeal. The only assignment of error is to the making of the order directing Tait, as receiver, to pay, out of any money coming [601] into bis hands as such receiver, to Coleman the amount of his disbursements and expenses while acting as receiver. There is no objection to any item of Coleman’s account; the only objection to its allowance being that the plaintiff in the bill not having given a bond prior to the appointment of the receiver and the making of the order restraining the defendants, the court was without jurisdiction to appoint a receiver. This contention of the appellants is founded upon the Act of May 6, 1844, P. L. 564, sec. 1, which is as follows: “No injunction shall be issued by any court or judge until the party applying for the same shall have given bond with sufficient sureties, to be approved by said court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction.” The order appointing the receiver and granting the injunction was a unit, it was mandatory in language, had the effect of and was an injunction. It was clearly within the operation of the statute, and yet it was issued without a bond having been given by the plaintiff. This was an error for which the order would undoubtedly have been revoked by the court below, or reversed upon appeal, had the objection been made in time: Schlecht’s Appeal, 60 Pa. 172; Railroad Co. v. Casey, 26 Pa. 287. There was no defect of jurisdiction in the initiation of the proceeding, which was by bill filed in the proper court having general jurisdiction of the subject, and the plaintiff was in court upon a valid application to its unquestionable powers. The failure to require the plaintiff to give a bond prior to issuing the injunction did not affect the jurisdiction of the court over the parties or the subject-matter. The court, therefore, had general jurisdiction over the subject-matter and the parties, and no mere error of the court in the proceeding made void the decree: Littleton’s Appeal, 93 Pa. 177 ; Haught v. Irwin, 166 Pa. 551. The purpose of the legislation upon which the appellants rely was to prevent men’s rights from being jeoparded by special injunctions awarded during1 the pendency of causes, before those rights were determined by final decree. There can be no doubt that a defendant can waive this provision of the statute, by stipulation filed at the time of the issuing of the injunction or subsequently. In the present case, the defendants, after having filed their answers to the bill and being fully aware of their rights, [602] filed a stipulation that the business should continue to be carried on by the receiver, under the control and direction, of the court, and the objection now urged against the appointment was for the first time suggested when the receiver subsequently asked that he be repaid the.money which he had expended in the discharge of his duty. It was too late. The parties, being properly in court, had agreed that the property should be administered by the court through its officer, and must be held to have waived any error in the proceedings which they had the legal right to waive. At the time the receiver made his application for repayment, the defendants had no right to question the regularity of his appointment, and it cannot avail the appellants that, at one stage of the proceedings, they had it in their power to cause that appointment to be set aside: Wilson v. Scranton City, 141 Pa. 621. The defendants cannot avail themselves of all the fruits of the decree and join in carrying it into effect in so far as it is to their advantage, and then object to payment of the legitimate expenses of its execution: Jacoby v. McMahon, 174 Pa. 133. Judgment affirmed.