Jaffray & Co. v. Raab

33 N.W. 337, 72 Iowa 335

• Court: Supreme Court of Iowa
• Decided: June 14, 1887
• Status: Published

Opinion

Rothrock, J.

It is not claimed that the allowance made to the receiver was excessive, nor that he was in any manner unfaithful to his trust. On the contrary, it appears that he disposed of the property, and turned all of the assets into money, and fully accounted for the same, to the amount of some $40,000. ¥e suppose that the'court taxed part of the compensation of the receiver to the plaintiffs on the ground that they failed in establishing their claim that the mortgage was fraudulent. We do not think, under all the circumstances attending the case, that they should be required to pay any part of the receiver’s compensation. Our reasons for so holding will be very briefly stated.

I. The record shows that no objections were made by any of the creditors to the appointment of a receiver. Not only this, but the court appointed the person agreed upon by the parties ; and by this act we think that they should be held to have consented that a receiver be appointed.

II. The conflicting claims of the creditors of the. firm made a proper case for the appointment of a receiver. It was absolutely necessary that some one should take charge of and dispose of'the property. This was doubtless attended with as little expense as if the same duties had been performed by the trustees named in the mortgage, or by the assignee under the general assignment, which general assignment was made by the insolvent firm on the 25th day of June, 1879.

It does not appear that the appointment of a receiver made additional costs or expense ; and, even if the plaintiffs knew their liens by attachment wquM be postponed to the creditors secured by the mortgage, tliey were nevertheless creditors, and it was their right to demand that the-assets be so administered as to reach their claims, if possible.

The facts are widely different from those in the case of French v. Gifford, 31 Iowa, 428. In that case the defendants resisted the appointment of a receiver, and appealed from the order making the appointment, and the appointment was vacated and set aside as having been wrongfully made. It is a general rule that the compensation of a receiver is taxable, not to the parties, but is taken from the fund in controversy between the parties. Radford v. Folsom, 55 Iowa, 276.

The defendants appeal from that part of the order which requires part of the receiver’s compensation to be paid from the funds in his hands. As we hold that the whole compensation should be paid from that fund, the defendants’ appeal requires no further consideration.

Upon, the defendants’ appeal the judgment will be affirmed, and upon the plaintiffs’ appeal it will be

REVERSED.