15 Colo. 376 | Colo. | 1890
The appellant was a mining corporation, engaged in mining in the year 1885, and had been prior to that time; was the owner of several lodes, buildings, etc.; and was indebted in different amounts to various contractors, employees and material-men, who, in June of that year, instituted statutory proceedings to secure liens upon the property of appellant, Sohoolfield being one, among others, of the lien claimants. On the 19th day of June, 1885, decrees were entered for the various claims, amounting in the aggregate to about $35,000, making such claims liens upon the property of the company, and ordering the same to be sold according to law for their satisfaction. At the time of bringing the suits, the different lien claimants united in representing to the court the necessity of operating the pumps and keeping the mine clear of water to prevent irremediable damage, and in asking that a receiver be ap.pointed and put in charge of the property “ to preserve said mine and keep it security for such claims,” representing that the property, if protected, was ample security for the debts; otherwise not. Appellee Kurtz was appointed, qualified, and entered upon the discharge of his duties. In the decree of the court, after ordering the sale of the property to satisfy claims, it provided for the application of the money, “ first, to the payment of all the costs of this proceeding, including whatever balance may be due the receiver, James W. Kurtz, for the care and preservation of the property up to and including the day of sale.”
The record does not show that the appointment of a receiver was resisted by the appellant in any manner, or that
The record contains no return of the sheriff whatever. There is nothing in the record, abstract, or arguments of counsel to in any way inform the court who became the purchaser of the property at the sale, and what amount was realized from the sale. The record not disclosing the fact who became the purchaser, and the attention of counsel having been called to it, a stipulation was filed in this court, in substance, that the property was bought at the sale by James Staples for about §38,000.
The only evidence found in the record of a sale of the property under the decree is contained in a report of the receiver filed July 31, 1885, in which it is stated that on July 11th the sheriff had made a sale of the property, and had received the moneys due under the decree, “ and has paid over to said receiver the balance of costs due for care of the property as set down in the receiver’s report, filed herein on July 11, 1885,— to wit, §2,350.45,— and said receiver has since paid the same out to the parties entitled thereto.” It appears from the report of the receiver that on the 11th day of July, which was the day of the sale, Beceiver Kurtz presented his report and account to that date, in which he shows the total expenses to have been from the date of appointment to that date §4,145.27, and that the amount he had received from the mine and other sources amounted to §1,894.82, leaving the balance due him on that date $2,250.45, being the same amount which he reports to have received from the sheriff, as shown above. Hence it clearly appears from the record that the entire accounts of the receiver were passed and paid off up to and including the date the property was sold by the sheriff.
On the 20th day of July the receiver applied to the court to be discharged, and on the same day a petition was filed
The appellant objected to the report of the receiver as shown by the record, and the objections were overruled by the'court (what the objections were nowhere appears), and the court decreed the further sum, as above stated, to be due and owing the receiver, and made the following order: “ And it is further considered, adjudged and decreed by this court that the aforesaid sum of $2,820.97, due the receiver, James ~W. Kurtz, be, and the same hereby is, declared a first, prior and superior lien, as of date the 13th day of June, A. D. 1S85, on the property so taken care of and preserved by the said receiver,” and proceeds to designate the property.
The receiver having been appointed pendente lite to preserve the property, and protect the creditors in their security, and a final decree having been entered establishing
It is true that appellant in this case brought the proceedings of the district court to this court for review by writ of error, and that the decree of the court under which the sale was made was held erroneous in one respect, and the cause remanded. See Mining Co. v. Schoolfield, 10 Colo. 46. In that case no question in regard to the receiver, or presented in this appeal, was involved or considered. After the cause was remanded, the irregularity for which the decree was reversed was settled and adjusted amicably by the parties in interest, and no further proceedings had in the district court. Consequently those matters can have no influence in the determination of this case. The creditors having been paid in full, there was, after the 11th day of July, no suit pending in that court in which Schoolfield and others were parties in which a receiver could either be appointed or continued by an order of court. Having been appointed to' preserve the property and security of plaintiffs pending litigation, his functions as receiver ended with the sale and payment of the full claims of the creditors, as decreed by the court. Staples became the owner of the legal title, Avhich might be divested by redemption by the appellant. There Avas no suit pending’ after the sale to give the court jurisdiction of the property of Staples or appellant, to appoint a receiver, or to continue one who had acted in that
In this case the receiver was fully paid by the sheriff to the date of sale. It was error to enter a decree in his favor at the January term: First. Eor the reason that the amount allowed was for services and disbursements made after the term of office had expired by the conclusion of the litigation
It is unnecessary to discuss the other supposed errors relied upon by counsel. It is apparent that it was error to enter any decree in that case in favor of the receiver, and of necessity erroneous to enter a decree making subsequent claims of the receiver a lien upon the property to antedate the decree of the court under which the property was sold.
Ve conclude that the decree appealed from should be reversed and the cause remanded, and so recommend.
Bichmond and Bissell, CO., concur.
Por the reasons stated in the foregoing opinion the judgment is reversed.
Reversed.