Geer v. Finn

Kuhn, C. J. (after stating the facts). We are not of the opinion that-the appointment of the receiver by the learned trial judge who made the order was an abuse of discretion. It was the defendant’s claim that he was the owner of the property and was proceeding to collect the installments on the contracts and appropriating them to his sole use. This claim was found unjustified by the trial court upon the hearing of the case upon its merits, and the contention of the plaintiff that the property in question was owned by the parties as tenants in common was fully sustained. No question is made but that the receiver took possession of the property, and performed the services that he did in good faith, acting under the order of the court. Counsel for the defendant contend that the allowance made by the court for his services was reasonable, in view of the services performed. The only question which, in our opinion, it is necessary to decide here, is to determine who, under the circumstances, should pay for the expenses of the receivership. The rule governing has been thus stated in 34 Cyc. p. 864: “Receivership expenses, in the absence of statute, should in all cases, as between the parties, be adjudged upon equitable principles.” It appearing that the plaintiff herein was compelled to file his bill to obtain his rights in the matter, and the court having found that the equities were with him and that the allegations in his bill were sustained by the proofs, we are of the opinion that under such circumstances the expenses of this receivership should in equity and justice be borne by the defendant. The decree determined that the defendant was in the wrong, and the plaintiff should not now be made to bear the burden of paying the receiver’s fees, when, by the defendant’s unlawful action, it was made nec [742] essary to have a receiver appointed. We think that the order of the lower court should be modified, so as to compel the payment of the expenses of the receivership by the defendant Mr. Finn. A decree will be entered, making the modification suggested, with costs to the plaintiff. Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.