131 Ill. App. 490 | Ill. App. Ct. | 1907
delivered the opinion of the court.
It is sought by this proceeding to reverse the order of November 18,1902, authorizing the receiver to apply the money in his hands in payment of his own and his solicitor’s fees and approving the receiver’s report of that date showing previous payments to himself and said solicitor out of what the court finds to be defendant’s money. That the allowance of these payments out of the defendant’s money was erroneous may very well be true. In Hughes v. Link Belt Machinery Co., 95 Ill. App. 323-327, we said: “It appearing that the appointment of the receiver was improperly procured, his costs and disbursements were chargeable to appellee who, as complainant in the suit, procured the receiver’s appointment,” citing McAnrow v. Martin, 183 Ill. 467 (473); Highley v. Deane, 168 Ill. 266 (272). In the last of the above cases it was said: “Where the receivership is procured under the assertion of an unjust and wrongful claim as finally found by the court and the receiver is authorized to take possession of the property of another on such wrongful assertion, the court can protect the injured party by returning the property of which he was divested without its being diminished to pay receiver’s charges,” citing Weston v. Watts, 45 Hun. 419; French v. Gifford, 31 Iowa, 228; Verplanck v. Mercantile Ins. Co., 2 Paige, 438; Radford v. Folsom, 55 Iowa, 295. In Link Belt Machinery Co. v. Hughes, 195 Ill. 417, it is said (p. 419): “A court of equity having by its receiver taken possession of appellee’s property, and having by its orders taken his rights under its protection, is bound to protect them without driving him to a suit at law to enforce such rights.” In Standish v. Musgrove, 223 Ill. 500 (504), it is well said that “a court should closely scrutinize the accounts of a receiver before approving them. The inclination to be liberal with other people’s property is too well known to be overlooked.”
But while it may be that the order complained of was erroneously entered, that the receiver is not entitled to be paid for his services as receiver out of the complainant’s funds and that the Circuit Court is, as said by the Supreme Court, “bound to protect” the defendant’s rights “without driving him to a suit at law to enforce such rights” against either the receiver, the latter’s solicitors or the complainant, the order in question is clearly not a final order in the cause and therefore not appealable, nor subject to reversal upon writ of error. The bill is still pending in the Circuit Court which doubtless will take appropriate action upon proper application. We are compelled therefore to dismiss the writ of error.
Writ of error dismissed.