Highley v. Deane

64 Ill. App. 389, 1896 Ill. App. LEXIS 930

• Court: Appellate Court of Illinois
• Decided: June 1, 1896
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the Court.

Notwithstanding what is urged to the effect that appellant has not appealed from the decree, and that the order appealed from is not one that is appealable, we deem it best to dispose of this case upon the merits.

Appellant urges that as the receiver was not appointed at his instance, although his claim was properly found to be devoid of equity, he ought not to be charged with the expense of the receivership. What appellant did do, was to lile k bill to foreclose a mortgage, afterward found to be fraudulent, and upon this bill he obtained an injunction restraining Bramhall, Deane & Company from removing property upon which it had a valid mortgage.

This made the appointment of a receiver for such property proper, if not necessary. A receiver for this property having been appointed, appellant applied for and obtained an extension of the receivership to all the property described in the various mortgages, of which that of Bramhall, Deane & Company was but a small part.

Appellant was, before a receiver was appointed, liable upon the bond given to obtain an injunction against Bramhall, Deane & Company.

Appellant, by the filing of his bill, the injunction and receivership obtained by him, caused the expense of the receivership, and has properly been ordered to pay the same. But for the conduct of appellant, no receiver would, so far as appears, have been necessary.

Where a party, without probable cause, obtains the appointment of a receiver, he should be made to pay the entire expense thus by him created. Einstein v. Lewis, 54 Ill. App. 520; Myers v. Frankenthal et al., 55 Ill. App. 390.

The order of the Circuit Court is affirmed.