34 Wis. 638 | Wis. | 1874
The question of the appealability of this order has been settled in the case of Witter v. Lyon, a decision of even date herewith [ante, p. 564]. The order is appealable.
The proposition is conceded by counsel for the appellant, that when property is legally in the possession of the receiver it is the duty of the court to protect such possession, not only against violence, but also against suits at law. Were the shingles in question in the lawful possession of the complainant Benson, as receiver, at the time they were taken by the appellant Day, and converted to his own use, or to the ■use of the firm of L. J. Day & Co., of which he was a member? The taking by Day is undisputed. The affidavits of Sanborn, the agent in charge of the mill at which the shingles were manufactured, show very plainly that the shingles had been delivered to the complainant as receiver, and that they were so delivered as and for a part of the one-fourth of the shingles cut from timber taken from the lands mentioned by the witness, which one-fourth belonged to the firm of Evans & Brown and were to go into the possession of the complainant as receiver. The same affidavits also show that Sanborn was authorized to make such delivery. The arrangement between the parties L. J. Day & Co., the owners of the mill and part owners of the lands, Evans & Brown, part owners of the lands, and the complainant as receiver of the moneys, property and effects of the latter firm, respecting the manufacture of the shingles and the division of them when manufactured, is clearly set forth in the same affidavits, and likewise in • the affidavit of Oscar Koch, who was one of the firm of L. J. Day & Co. It appears that San-born, or Sanborn and Olmstead, in charge of the mill, were to set apart the one-fourth for the receiver as the manufacture progressed, and that they were so instructed by L. J. Day & Co The authority of Sanborn to make delivery is in reality
The claim put forth by the appellant Day seems to be, that Sanborn was mistaken or wrong in the delivery, and that the shingles delivered were not a portion of the one-fourth to which the receiver was entitled. If Sanborn was mistaken, and the shingles ought not to have been delivered, that did not change the character of the receiver’s possession. It was still a lawful possession, and Day's remedy was not to regain the property by an act of trespass, but to apply to the court for redress or for leave to sue.
Neither can the receiver’s title, or his ultimate right of possession, be tried in this proceeding for a contempt. That can only be tried in some action appropriate for that purpose, to be instituted against the receiver.
But it is said that the order appointing the receiver did not give him a right to the possession of the shingles. We do not so understand the order, even as modified; for the modified order made him “receiver of all the moneys, assets and property of the firm of Evans & Brown.” The shingles were the property of the firm, or so claimed to be, and as such it was proper for the receiver to take them into his possession.
Day had sold the shingles, and they had been taken out of the state, before- this proceeding was instituted ; and hence it was impossible for the court to compel a restoration of them to the possession of the receiver. The court found the value of the shingles, and ordered that Day pay it to the receiver by way of reparation. This was a proper order.
The court also directed that Day be allowed the amount, if any, paid by him for the manufacture of the shingles, and that the same be deducted from the value so found. A referee was
We see no objections to the order, and direct that it be affirmed.
By the Court. — Order affirmed.