McKenzie v. Coslett

Per Ouriam: Subsequent to the decision in this cause, and prior to issuance of remittitur therein, counsel for respondent filed herein a petition on behalf of respondent, praying this court [221] to make an order allowing the sum of $100 for the services of the receiver, in addition to an amount of $300 allowed by the trial court for such services to the 3d day of June, 1903; said allowance of $100 to cover the services of the receiver pending the appeal, and since the date last mentioned. The petition further prays that the order provide that the said sum of $100 be taxed by tbe clerk of this court as costs, and be included with tbe other costs of tbe appeal, and be awarded to respondent. This petition was beard by tbe court, and evidence offered in support of tbe reasonableness of tbe amount prayed for; counsel for both appellant and respondent appearing at sucb bearing. Our attention has not been called to any statute or rule of court by which we would be authorized to allow additional compensation that may be due tbe receiver as costs on appeal; nor have we been able to find sucb, or any precedent for a proceeding of this kind. Costs were not recoverable eo nomine at common law, and therefore can be recovered only in pursuance of tbe provisions of statute or rule of court. (11 Eney. Law & Procedure, 24.) Tbe receiver in this case was appointed by tbe trial court in accordance with tbe provisions of section 146 of tbe civil practice act (Comp. Laws, 3241), and is an officer of that court, and accountable to it for tbe trust imposed upon him. He has not been discharged, and tbe trial court still has jurisdiction to determine tbe amount of any additional compensation that be may be entitled to, upon tbe matter being properly presented to the court, and to make all necessary and proper orders in tbe premises. (High on Receivers, 781, 797.) Tbe petition is therefore denied.