McAnson v. Martin

Me. Justice Seaes delivered the opinion of the court. That the receiver was improperly appointed, has been already adjudicated by this court. Martin v. Sexton, 72 Ill. App. 395. It has been repeatedly held that where a receiver has been improperly appointed and the order appointing is vacated or reversed, the receiver should not be permitted to reduce the assets by withholding any part thereof for compensation to himself or for fees of his attorney. The latest of these decisions is Highley v. Deane, 168 Ill. 266. But it is contended by counsel for appellant that no such determination of the matter of the receiver’s compensation and his attorney’s fees should be made until a final disposition of the cause and an ascertainment thereby of the merits of the controversy. The decisions in this State do not support this contention. On the contrary it seems to have been the practice to determine at the time of the .vacating of the appointment of the receiver and the return by him of the funds and property in his hands, that he should not retain any of such funds by way of compensation for himself or fees for his lawyer. Einstein v. Lewis, 54 Ill. App. 520; Myres v. Frakenthal, 55 Ill. App. 390; Young v. Ruton, 69 Ill. App. 513. Objection is made that no reference to a master should have been ordered as to the amount of compensation and attorney’s fees until the court had determined whether any such compensation or fees might be allowed. It might have been a wiser and more economical course to have proceeded as suggested. But appellant appears to have assented to the reference, made no objection in the trial court, and can not be heard now, for the first time, in this behalf. The master’s fees are objected to as costs. It appears that it was stipulated that the stenographic work should be included as costs. JSTo sufficient ground is pointed out for' holding that the costs taxed are improper. The decree is affirmed.