Richey v. Guild

Mr. Justice Sears delivered the opinion of the court. It is urged by the learned counsel for appellee that this appeal should be dismissed, because appellant was not a party defendant to the suit when the order appealed from was entered, and therefore had no right to appeal. We think this motion should not be granted. It is true that when the order was entered appellant was not a party to the suit. But he afterward filed his answer and was recognized by the court below as a party to the suit, in that the court granted his prayer for an appeal (which was superfluous, as this appeal is from an interlocutory order), and made a certificate of the evidence at his instance. By these acts the court recognized appellant as a party to the suit. The formal and correct procedure would have been for appellant to have moved for an order making him a party defendant to the suit and permitting him to answer the bill. But this formal procedure was evidently dispensed with by the court below, which permitted appellant to answer the bill, by which answer he shows that he is the owner of the equity of redemption in the mortgaged property, and also permitted him to have a certificate of the evidence made. The time when a defendant appears, whether before or after the entering of an interlocutory order, is of no consequence as affecting his right to appeal from such order. We are therefore of opinion that the motion to dismiss the appeal should be denied. The remaining question is as to the propriety of the order appointing a receiver. It does not appear from the abstract that the trust deeds here in question provide for the appointment of a receiver before foreclosure. The evidence heard upon the application consists only of the' unverified bill of complaint and the affidavits noted in the foregoing statement of facts. From all this it appears that the persons who are personally liable for the mortgage debt, so far from being insolvent, are amply able to respond for that debt. The value of the mortgaged premises is a matter of dispute, but eight affidavits against two, estimate its value at much'more than the mortgage debt. Upon this showing, we are of opinion that no receiver should have been appointed. Haas v. C. B. Society, 89 Ill. 498. In that case the Supreme Court said, referring to a receivership: “ Such action will not be taken, however, unless it be made to appear that the mortgaged premises are an insufficient security for the debt and the person liable personally for the debt is insolvent. * * * A combination of these two things seems to be required in all cases we have,examined.” This announcement was in relation to a receivership after foreclosure sale, and when a deficiency existed, but it applies with greater force to an interlocutory receivership, when it appears without dispute that the persons who are individually liable for the mortgage debt are amply able to respond for the same. The order is reversed.