Highley v. Deane

Mr. Chief Justice Phillips delivered the opinion, of the court: No certificate of evidence having been incorporated in the record, this court has no means of determining whether the discretion exercised by the chancellor in decreeing that the costs of the receiver should be paid by the original complainant, whose bill was dismissed, was or was not properly exercised. The evidence upon which the decree was entered not being before this court, it must be presumed it was sufficient to justify and support every finding in the decree. Where the record is incomplete and the correctness of the decree is dependent upon facts not before this court, we can but affirm. Frink v. Phelps, 4 Scam. 580; Heffron v. Rice, 50 Ill. App. 332; Rowan v. Bowles, 25 Ill. 97; VanMeter’s Heirs v. Lovis’ Heirs, 29 id. 488;. Bertrand v. Taylor, 87 id. 235; Culver v. Schroth, 153 id. 437. The discretion of the chancellor in taxing or apportioning costs is a legal discretion, to be exercised according to equitable principles, otherwise it is a subject for review. (Mecartney v. Morse, 137 Ill. 481.) But the taxing of costs must always be determined from the facts and circumstances of each particular case, and before it can be reviewed by this court the record must disclose the facts and circumstances which induced the entering of the order. We can only, therefore, determine whether a case may exist in which the chancellor would be authorized to charge the defeated party with the costs attendant upon the expense of a receivership. Whilst the general rule is that the costs of the receivership must be paid out of the funds in his hands as an officer of the court, yet there are exceptions to this rule. From what appears in the decree the appointment of the receiver resulted from the institution of suit by the appellant, whose bill was for injunction and relief, and growing out of which the appointment resulted. It further appears from the decree that the claim asserted by the appellant was fraudulent and void, and his bill was dismissed. So far as the appellant was concerned, the appointment was one resulting from his act in filing a bill which could not be sustained in attempting to assert a fraudulent claim against the defendants thereto. All the property in controversy was held to belong to the appellees, some of whom were asserting a right to it at law when appellant’s bill was filed. This action of appellant rendered necessary the appointment of a receiver to have the custody of the property. The law is not so powerless that a court of equity may be invoked to sustain an unjust claim, and when it necessarily takes charge of property by its receiver, can only pay that receiver out of the funds in his hands, and as to the receiver’s charges must let the person who rendered necessary the appointment go free of costs and have the costs paid out of the proceeds of an innocent party’s property. Such a rule would imply that an innocent party, after vindicating his right to his property, might have it taken to pay an expense resulting from the wrongful act of the defeated party. Where the receivership is procured under the assertion of an unjust and wrongful claim, as finally found by the court, and the receiver is authorized to take possession of the property of another on such wrongful assertion, the court can protect the injured party by returning the property of which he was divested without its being diminished to pay receiver’s charges. Weston v. Watts, 45 Hun, 419; French v. Gifford, 31 Iowa, 228; Verplank v. Mercantile Ins. Co. 2 Paige, 438; Radford v. Folsom, 55 Iowa, 295. As there may therefore occur cases where the costs of the receivership may well be taxed to the defeated party, we hold, as there is no evidence contained in the record, that this case comes within such class of cases. The judgment of the Appellate Court for the First Pistrict is affirmed. Judgment affirmed.