| Ill. | Jan 15, 1866
delivered the opinion of the Court:
The money, in this case, was paid into the hands of the clerk by complainants while the original cause was pending. It was not under an order of, nor does it appear to have been within the knowledge of, the court below. There is nothing from which'it can be inferred that the clerk was either a general or special receiver or depositary of the court, or that the payment, after it was made, was recognized or treated as a fund in court. For aught that appears, this was only a tender made by com-' plainants to defendants when he filed his bill to be permitted to redeem. They, however, seem, by their acts at least, to have refused to receive the tender thus made, as they did not receive the money, or have it- declared a fund in court. Kot only so, but the decree was rendered without reference to this fund.
The decree requires complainant, and not the clerk, to pay the $182 to the master, and directs him first to pay the costs of the suit, and then to pay the balance to defendants. The decree required the complainant to pay the money; .and, from this requirement, we must conclude that the decree was made without any reference to the money in the hands of the clerk. Had defendants asked the court, it would no doubt have been declared a fund at its disposal, and decreed the clerk to have paid the money directly to them. But, as this was not done, we are unable to see how it became a fund in court. Had the court ordered the clerk tó so receive or hold it, there can be no doubt that it would have become such a fund. And had the court, at any stage of the proceeding, in any manner, treated it as a fund of court, it would have been such, and more especially had the decree required the clerk to pay it to defendants. But this was not done expressly or by implication.
The clerk is not by virtue of his office a receiver of the court, and is not bound to receive such deposits, except under an order of the court. And when he has thus received money paid into court, he can only be warranted in paying it out on the order of the court. As this money failed to become a fund in court, had the clerk by any means lost it, complainant would have been compelled to sustain the loss, and not the defendants. This being so, it is only reasonable, that he should be permitted to withdraw the fund, at any time before the court has recognized it as a fund under its control, or until the other parties had manifested a willingness to receive the money on the terms upon which it was deposited.
The court below; however, having rendered the decree it did, and defendants not being required to part with their title, until they received the redemption money which they were found by the court entitled to receive, they had a right, at any time before the fund was withdrawn from the hands of the clerk by complainant, to come into court, and, upon notice to the other party, and proof that the decree had not been paid, obtain an order for the payment of the' money by the clerk to them, on the same terms they could have had against the master, had the money been paid to him. But such an application comes too late, after the party thus depositing it has withdrawn the money from the clerk, when it had been placed in his hands without an order of court or being recognized as a fund of court.
In this case the clerk claims to have paid the costs of the chancery suit as found by the decree. If he made this payment he would, as between himself and the defendants in that suit, be entitled to a credit for the sum thus paid. He also claimed to have paid complainant’s solicitor one hundred dollars. If this was done upon proper authority, and before this motion was made, he was entitled to a credit for such a payment thus made. If not so paid, then it was in his hands, liable on the motion of defendant to become a fund in court, and to be paid out thereafter only under an order of the court. After the motion was made for an order on the clerk, to pay the money to defendants, it then became a fund of court, and the clerk was liable to pay whatever sum was in his hands belonging to complainant, when ordered by the court.
Inasmuch, however, as the suit had terminated, and passed from the docket about a year before this motion was entered, complainant was entitled to notice of the motion, before the order could be properly passed requiring the clerk to pay the money to defendants. In the ease of Morrow v. Smith, 4 B. Mon. 99" date_filed="1843-09-09" court="Ky. Ct. App." case_name="Morrow v. Smith">4 B. Mon. 99, it was held that the court should not entertain a motion to withdraw a fund of court, without notice of the intended application. Ho such notice was given in this case, and complainant had clearly the right to be heard before the money was ordered to be paid to the other party. Had the original decree, as it should have done, required the clerk to pay the money to defendants, or to the master, and by him to have been paid to the defendant, such a notice would not have been required.
The order of the court below is, therefore, reversed, and the cause remanded.
Decree reversed.