147 Ind. 284 | Ind. | 1896
Appellant filed exceptions to the final report of Binz, receiver of the Shelburn Coal Company, the cause was tried by the court and at request of appellant a special finding of facts wai made and conclusions of law stated thereon. Appellant excepted to each conclusion of law. Judgment was rendered in favor of the receiver which appellant filed a motion to modify and the same was overruled by the court. The assignment of errors calls in question the action of the court in overruling the motion to modify the judgment,, as well as each conclusion of law.
It appears from the special finding that on September 9, 1893, one Richards was appointed by the court below receiver of the Shelburn Coal Company in tlie action of Kirkman et al. v. Shelburn Coal Co., No. 7605. That he continued to act as such until May 31, 1894, when he filed a partial report and was discharged. On
That before appellee Binz was appointed receiver there had been an explosion in said mine and the air shaft to said mine filled up to within twenty feet of the top, and successfully and lawfullly to repair said air shaft, it was necessary to remove the debris therein
That all the expenditures made by said receiver during his receivership, including the unpaid liabilities, were made for the preservation and operation of said mine and were for labor and material in operating said mine and in cleaning up and repairing the same, so that it could be lawfully operated, and for machinery and the repairs thereof and the necessary appliances in the operation of said mine; that all of said expenditures were made and liabilities incurred in good faith with the knowledge of appellant, and the same were reasonable and necessary. Appellee, on request and demand of appellant, made daily reports in writing to appellant of daily doings as such receiver, and filed monthly reports thereof with the clerk of the court below. That when appellee, Binz, was appointed receiver the judge appointing him directed him to employ an attorney, naming him, and the receiver employed the attorney named. The attorney acted as such for two months, when the receiver employed another attorney, who rendered services from September 1, 1894, until said receiver resigned.
That the reasonable value of the services of said receiver was $110.00 per month, and four hundred dollars thereof allowed thereon by the court has been paid.
The court in its conclusions of law held that all the unpaid indebtedness, with the exception of some re
Appellant insists “that the court erred in approving the receiver’s report and declaring said indebtedness lawful, and a lien on the property held by appellant as purchaser at the sale under the decree of foreclosure of his mortgage, for the following reasons:
First. The purchaser bought on the existence of an order denying the receiver such right, and the debts, are in disobedience to that order.
Second. The court could not have made such an order pending the time allowed for redemption except upon the consent of the purchaser and mortgage creditors.”
It will be observed that when the decree of foreclosure was rendered on June 27,1896, in favor of appellant, it was expressly stipulated in the decree that the mortgaged property should be sold subject to all the equities, rights and' liabilities, if any, for the cost and expense made by the receiver, Binz, and that on June 29, appellee, Binz, was appointed receiver on motion of appellant. Said property was sold under this decree, subject to all the rights and liabilities, if any, for the cost and expense made by Binz as receiver.
The application to the court to borrow money filed June 14, and August 21, 1894, as shown by~the special findings, was to procure money to pay indebtedness for labor, so that the court below knew, and ap
The fact that the first attorney was discharged by the receiver and another employed did not increase the expense of attorney’s fees, but the amount that wrould have been allowed to one, if he had rendered all the services, was divided between the two. Appellant’s burdens were not therefore increased, and he has no just grounds to complain of the conclusion of law as to the compensation of the attorney employed in September.
If the trial'court had refused to ratify the act of the receiver in discharging the first'attorney, and employing the second, a different question would have been presented.
It appears from the special finding that Binz, receiver, appellee, served as such receiver ten months, less two days, and that his services were worth $110.00 per month, and that he had been paid $400.00. The bal
The judgment is affirmed at the cost of appellee in this court, on condition that appellee enters in the court below a remittitur of all the allowance and judgment in his favor in excess of $445.17 within thirty days, otherwise the judgment as to the amount due the appellee for services as receiver, is reversed, with instructions to the lower court to restate the fifth conclusion of law so as to show $445.17 as the balance due appellee for services as receiver after deducting all credits, and render judgment accordingly.