159 Ill. App. 42 | Ill. App. Ct. | 1910
delivered the opinion of the court.
To warrant the appointment of a receiver in cases of the nature of the one under discussion two conditions are essential of concurrence, neither of which can be dispensed with. They are, first, that the debtor is insolvent, and, second, that the property on which the lien is sought to be enforced is meagre and scant security for the debt. It nowhere appears in the intervening petition, which is appellee’s pleading, that Wilcox is either insolvent or that the premises on which appellee seeks to establish a mechanic’s lien is insufficient security for his claims, which he avers is paramount to all other existing liens and encumbrances. While it is true that appellant’s affidavit, submitted as proof upon the hearing of the motion, states the insolvency of Wilcox and that there exists several trust deed encumbrances and judgments and claims for mechanics’ liens “which amount to its full value,” it is not averred in the petition that the encumbrances or claims set forth are liens upon the premises over which a receivership is sought. Both the allegations and proofs fall short of meeting legal requirement justifying the appointment of a receiver. The ruling on this subject is fairly uniform in this State. In Haas v. Chicago Building Society, 89 Ill. 498, the court say, in discussing the propriety of granting an order appointing a receiver: “Such action will not be taken, however, unless it be made to appear the mortgaged premises are insufficient security for the debt and the person liable personally for the debt is insolvent or at least of very questionable responsibility.” To a similar effect is Gooden v. Vinke, 87 Ill. App. 562; Richey v. Guild, 99 ibid. 451; Kountze v. Omaha Hotel Co., 107 U. S. 378; So. Building & Loan Ass’n. v. Carey, 114 Fed. 288. In Richey v. Guild, supra, the court say: “A combination of these two things” (insolvency and insufficient security of mortgaged premises) “seems to be required in all cases we have examined.” High on Receivers, Ed. 4, par. 667.
The stipulation of the parties states that Wilcox gave oral testimony on the hearing of the motion to appoint a receiver, but we do not find such testimony in the record. As the testimony is not before us, we cannot say what it tended to prove. It was appellee’s duty to preserve such testimony and we cannot say in ah equity cause, as we would say in one at law, “that the court having heard the witness and the party seeking a review failing to preserve in the record such witness’ testimony, we will assume that the facts established by it were sufficient to authorize the court’s action.” The rule controlling is stated in Goodrich v. Thompson, 88 Ill. 547, thus: “If any evidence was in fact offered to sustain the petition, it was the duty of petitioners to preserve it in the record; otherwise this court will assume none was submitted.”
The order of the Circuit Court of June 13, 1910, appointing Charles N. Loucks receiver is reversed.
Reversed. .
