Knickerbocker v. Benes

Mr. Justice Carter delivered the opinion of the .court: We are of the opinion that the facts in this case, as found by the decree set out in the statement of the case, were established by the evidence. No question is raised as to procedure, and it only remains to be determined whether, upon the facts found, there is any error of law in the decree. In Knickerbocker v. McKindley Coal Co. 172 Ill. 535, (a case growing out of the same receivership,) this court said (p. 546): “When Gore, whom appellants represent, procured the appointment of a receiver over the property, he created a charge thereon for the expenses of the receivership, hence the appellants cannot relieve the property of. that charge by purchasing it at a foreclosure sale under an encumbrance created by Gore, and for the payment of which he and his representatives are liable.” And in that case it was held that the appellants, as representatives of Gore, were liable for coal purchased and used by the receiver in running the hotel. That case differs from this in the nature of the liability, and perhaps in other respects which will be mentioned in another place; but the same facts appeared in that case as in this, establishing the liability of appellants, as such trustees of the property in question, for the expenses of the receivership. It appeared that Gore’s estate received the benefit of §50,000 derived from the rents and profits received by the receiver, and also received the furniture and furnishings of the hotel, amounting in value to upwards of §8000,— in other words, that the appellants, as such trustees, had received from the fund in the hands of the receiver, and which was burdened with the expenses and liabilities of the receivership, an amount of money and property largely in excess of such liabilities. In Bartlett v. Cicero Light Co. 177 Ill. 68, we held that damages for injuries to persons or property during the receivership, caused by the torts of the receiver’s agents and employees, are classed as a part of the operating expenses and are payable out of the income, or, if necessary, out of the corpus. (See cases there cited.) We are of the opinion that the injury to appellee was caused, as found by the decree, by the negligence of the receiver in operating the laundry where said appellee was hurt, and that the income and property which he received, and which to a large amount was used to pay Gore’s debts or was received by his trustees, was burdened with the liability to satisfy whatever damages appellee should recover for such injury. It was, adjudged that she should recover §4500, and no reason is perceived why Gore or his trustees should not,- to the extent of the money and property of which they received the benefit from the receiver, be required to pay these damages to appellee. It appears that there is nothing now in the hands of the receiver with which to pay them. It is immaterial that successive receivers had been appointed. The receivership continues though the personnel of the receiver may be changed. High on Receivers, (3d ed.) sec. 3956. See, also, McNulta v. Lockridge, 137 Ill. 270, where it was held a receiver is liable, as receiver, for the negligence of his predecessor, as receiver, whereby another is injured, and that the judgment is in the nature of a judgment in rem, and is payable out of the trust fund. This brings us to the point upon which appellants chiefly rely for a reversal of the decree, and that is, that appellee’s claim was barred by the Statute of Limitations. The"plea alleged and the record shows that the appellants were not named as parties to appellee’s intervening petition until more than seven years after the injury and two years after appellee came of age. The amended and supplemental petition was filed November 17,1898, and then for the first time she named appellants,' the trustees, as parties. But she had intervened in a cause to which they were parties, and filed her petition to compel payment out of a fund which was bound for such payment, in apt time, and these trustees received the benefit of such fund. They were not made parties as persons originally liable for her injury, but only as persons who were already parties to the original cause in which she had intervened, and who had acquired the fund or property pendente lite out of which she was entitled to have her claim paid. We are of the opinion that the statute does not apply. The proceeding was a continuous one, and the case is not governed by the principle that as to a new party added to a pending case the cause is to be considered as first commenced when he is made such party. And we cannot regard as applicable the many cases at law cited by appellants to the point that if the plaintiff, by amendment, adds a new cause of action or a new party after the statute has run, such new cause of action is barred and the whole cause is barred as to such new party. No new cause of action was added by the supplemental petition and no new parties were added to the pending cause. Appellants became parties on the death of Gore and had notice of appellee’s claim through her intervening petition filed in the case, containing a copy of her declaration which she had filed in her action at law against the receiver. We are of the opinion that appellants have not sustained their assignments of error, and the decree will therefore be affirmed. Decree affirmed.