18 Or. 474 | Or. | 1890
We are of the opinion that the decision of the circuit court herein, allowing to the receiver his commission and expenses out of the funds in controversy, should not be disturbed, The appointment of the receiver, under the view presented by the respondents, was correct; and although they failed to maintain the suit,. still the appointment was proper, as the respondents had a residuary interest in the' property mortgaged, and, although the mortgagees had priority, they were creditors of the mortgagors, and had a lien by virtue of their attachments on any surplus which might remain after the mortgage was satisfied. The cases cited by the appellants’ counsel, in which it was held that the allowance to a receiver for compensation out of the fund in suit was error, are cases where the parties intervening in the suit, and procuring the appointment of receivers,, were mere interlopers who had no interest in the subject matter of the suit, under any view. Here the case was otherwise, and hence it was within the discretion of the circuit court to allow the receiver his commissions and expenses out of the property; and we are not authorized to interfere with that discretion, unless satisfied that it has been abused, which the evidence shows was not the case. This view, upon this decision of the circuit court, being adverse to the appellants, necessarily determines the decision of the other question against them, as their right to tax the item allowed to the receiver, as a part of their disbursements, depended upon the right of the court to allow it out of the fund.
Both decisions will therefore be affirmed.
