Iroquois Furnace Co. v. Kimbark

Mr. Presiding Justice Sears delivered the opinion of the court. Appellee has presented a motion to dismiss this appeal because no appeal was prayed and allowed in the court below. The motion is denied. The order appealed from being an interlocutory order, no order of the court allowing an appeal is made necessary by the provisions of the statute. Commerce Vault v. Hurd, 73 Ill. App. 107; Hartzell v. Warren, 77 Ill. App. 274; Eichenbaum v. The Eichenbaum Co., 78 Ill. App. 610. The several grounds upon which appellant seeks a reversal of this order are : 1st. That the application for the order was ex parte so far as appellant is concerned, and ■that the order was entered without any notice to appellant. 2d. That Mitchell, who' was appointed receiver by the order, was an improper person to be so appointed because of his relationship to the subject-matter of the litigation. 3d. That the order is too broad. We are of opinion that under the circumstances of this case, notice might and should have been given to appellant of the application for the order. But it is conclusively " shown by the record that appellant has suffered no prejudice by reason of lack of such notice; for upon a full hearing, participated in by appellant, the court afterward denied a motion to vacate the order of appointment. The order should not, therefore, be reversed, and the court below put merely to the re-entering of an order upon notice which that court has already determined to be proper upon 'a full hearing. The error complained of is an error shown, to have been without prejudice, and to reverse upon that ground alone would be to require needless proceedings in the trial court. O’Kane v. W. E. D. G. Co., 72 Ill. App. 297; N. Y. Bank Note Co. v. Kerr, 77 Ill. App. 53; Cook Co. B. Co. v. Kaehler, 83 Ill. App. 448. The second contention is that Mitchell’s relation to the subject-matter of the litigation made him an unfit person to be appointed receiver. It is conceded by appellee, and was, upon the hearing to vacate this order, that the appointment of a receiver was necessary, and the only objection to the order then or now is because of the person appointed. Counsel for appellee contend that because of this concession appellant can not question the propriety of the order. To this we do not assent. The propriety of the original order of appointment may be questioned upon appeal as well because of the person appointed as upon any other ground. The effect of the decision in International L. & I. Union v. McGonigle, 72 Ill. App. 399, is to hold that where there is no appeal from an interlocutory order appointing a receiver, the propriety of the receivership can not be questioned by an appeal from a subsequent interlocutory order which merely substitutes one person for another as receiver. Where an order is final and appealable, or in an interlocutory order made appealable by the statute, the propriety of the appointment of any person, by reason of his relation to the suit, may be questioned upon review. This appeal is from the original order of appointment. We have, then, to determine if Mitchell is an unfit person to be so appointed. The only relation of Mitchell to the subject-matter of the litigation arises from the fact that he had been previously appointed agent, by the voluntary act of all the parties, to have charge of and manage the property here involved. Therefore he was made a party to the suit. There are authorities to the effect that in general a party to the suit should not be appointed receiver therein. High on Rec. (3d Ed.) 70; Benneson v. Bill, 62 Ill. 408; Finance Co. v. C. R. R. Co., 45 Fed. Rep. 436. But there are as well decisions in this State, and authorities elsewhere, that in some instances, and notably in receiverships of copartnership property, an interested party may with propriety be appointed as receiver. High on Rec. 67; Beach on Rec., Sec. 27; Miller v. Jones, 39 Ill. 54; The People ex rel. v. The Ill. Building & Loan Ass’n, 56 Ill. App. 642; Robinson v. Taylor, 42 Fed. Rep. 803. And where, as here, the parties interested in the property have previously and before the litigation arose, voluntarily agreed upon .a person to act as agent for them all, it has been held that upon litigation arising between such parties as to such property, the person who had been so acting as agent was a fit and proper person for appointment as receiver. Hanover Fire Ins. Co. v. Germania F. I. Co., 33 Hun, 539. We regard this decision as being strongly in point. The facts are very like to the facts of the case under consideration. Two insurance companies had established a joint agency and had agreed that upon the termination the agent so appointed should close up the affairs of the joint agency. One of the parties to the agreement undertook to prevent the agent from closing up the business. Upon a bill filed by the other party to the agreement the court appointed the agent as receiver of the joint property. The court, in reviewing the propriety of such appointment, said: ■ “As the parties themselves had agreed that the defendant Stoddard should manage and close the affairs of this agency, it was entirely regular, so long as he had been interfered with on the part of one of them, that he should be appointed managing receiver by the court and placed under its special control and protection. This was no more than carrying into effect the agreement the parties themselves had voluntarily made; and it was alike beneficial to both of them that this appointment should take place.” A well established rule, applicable to such questions as here presented, is that the order appointing a receiver is largely discretionary, (and especially so in respect to the fitness of the person appointed), and that such order will not, in that behalf, be disturbed upon review unless some objection appear which is overwhelming in point of propriety or fatal upon principle. High on Rec. 65; Cookes v. Cookes, 2 De G. J. and S., star page, 526; Shannon v. Hawks, 88 Va. 338. We are not prepared to say, from all that appears by the record, that the appointment of Mitchell as receiver was so opposed to principle as to warrant us in reversing the order. We are, on the contrary, led to believe from the record that the appointment of any one other than Mitchell would have greatly impaired the selling value of the plant, and hence have been detrimental to the interests of all the parties. The grounds of objection to this appointment seem slight in comparison with the ground of objection to appointing any one else, and thereby changing the assets from the plant of a going and protit-earning concern into assets which would consist of machinery, material and merchandise only. Nor do we regard the order as too broad. By it the receiver is given no power to allow and pay claims of creditors except as approved and ordered by the court. The order does not reach any property except such as belongs to the joint ownership. The order is affirmed.