47 W. Va. 27 | W. Va. | 1899
In the chancery suit, in the circuit court of Randolph County, of Felton v. Felton, Henry Skidmore was appointed special receiver of certain personal property involved in the suit, consisting of lumber, logs, wagons, horses, a sawmill, and other things pertaining to a lumber business, with power to sell lumber on hand, manufacture
One exception to the report is that it finds too great an amount of receipts, and should have taken the receiver’s reports as to this.
As to a refusal to allow an item of eighteen dollars alleged by the exception to have been allowed by a court order': There is no such order in the record. No evidence shows that the commissioner erred in allowing only one hundred dollars for compensation to the receiver in addition to attorney’s fee of fifty dollars.
There was an exception because the commissioner did not file with his i eport the evidence before him. He does not expressly mention it in his report, as a part of it; but he surely filed it, and if he did, it would identify itself with the case, and need not be specially mentioned in the report. He must ha^e filed it, because several depositions taken before the commissioner are in the record, and the clerk certifies that others were omitted from the record by direction of Skidmore’s counsel. If there is anything in .them to help his cause, I presume he would have inserted them. The commissioner does not appear to have failed to return the depositions. But, if he did, Skidmore could and should have asked the court to require him to file them. A party cannot let his case go to hearing, knowing of such failure of the commissioner, without asking the court to compel their production. He can get tne benefit of them without resorting to an appeal. But they seem to have been returned, and the counsel of Skidmore asked the clerk to omit them.
Another assignment of error is that the court decreed the distribution of the fund found in the receiver’s hands, and recommitted the case to a commissioner to take additional proof as to money which had or should have come into the hands of the receiver. The receiver was not discharged, and would have further money in his hands in the future. This recommitment could not go back of the close of the confirmed settlement. I understand it to be common practice to decree distribution from time to time of funds in the hands of receivers, plainly going to creditors, on which the receiver can have no possible personal claim, as this receiver had not. Creditors might complain of this. He cannot. Interlocutory or pendente lüe orders for distribution are very common, and chiefly concern creditors
Affirmed.