Fluke v. Phelps

Mr. Justice Baker delivered the opinion of the court. The following is the only assignment of error: “The court erred in entering said decree or order because it did not require complainant, first, to give bond as required by sec. 53, chap. 22, of Hurd’s Revised Statutes, and complainant did not file such a bond.” This assignment does not bring before us for review the restraining order, but only the order appointing a receiver. The statute, section 22, chap. 52, R. S., provides that before any receiver shall be appointed, the party making the application shall give bond to the adverse party in such penalty as the court or judge may order, and with security to be approved by the court or judge, conditioned to pay all damages, including attorney’s fees, sustained by reason of the appointment and acts of such receiver. It also provides that bond need not be required when, for good cause shown, and upon notice and full hearing, the court is of the opinion that a receiver ought to be appointed without such bond. The order appointing a receiver does not in terms dispense with the requirement of the statute that the receiver give a bond to the complainant. In Watson v. Cudney, 144 Ill. 624; Staar v. Moy Tong Koon, 145 Ill. App. 341; Ayres v. Graham S. S. Coal & Lumber Co., 150 Ill. App. 137; Aevermann v. Rizek, 160 Ill. App. 648, and Mason v. Hooper, 166 Ill. App. 537, it was held to be error to appoint a receiver without a bond by complainant unless the order of appointment contained a statement or finding that a receiver ought to" be appointed without such bond. We see no reason to alter or modify the views expressed in the cases above cited. We think that the record shows sufficient grounds for the appointment of a receiver, but if one is appointed the court should require the moving party to give bond as provided by the statute, unless in the opinion of the court a receiver ought to be appointed without such bond, and in that case the order of appointment should so state. The order appointing a receiver is reversed and the restraining order appealed from is affirmed. Affirmed in part and reversed in part.