110 Ill. App. 150 | Ill. App. Ct. | 1903
delivered the opinion of the court.
The ground urged for a reversal of the order is that the. receiver was appointed without notice to appellant.
“ When the relief is sought upon an ex parte application, upon the ground of extreme necessity, the particular facts and circumstances rendering such summary proceeding necessary should be set forth in the application, and a mere statement of opinion as to such necessity, even though made under oath, will not justify a departure from the general rule requiring notice of the application.” High on Receivers, 3d Ed., Sec. 113, and cases in note 6, which fully support the text.
In Baker v. Administrator, etc., 32 Ill. 79, 115, the court say:
“ A receiver is not usually appointed unless fraud is clearly proved by affidavit, or when it is shown that imminent danger would ensue, if the property is not taken under the care of the court before an answer is put in.” See also English v. The People, 90 Ill. App 54, and Consolidated S. M. & M. Co. v. Loeber, 96 Ill. App. 128.
We are of opinion that no special facts or circumstances warranting the appointment of a receiver, without notice, are shown by the bill in this cause, and that the appointment of the receiver, without notice, was error. If,'as averred in the receiver’s petition, the property of the parties is in the possession of the city of Elgin, and the city proposed a settlement as averred in the bill, we are at a loss to understand why the city was not made a party to the bill. Had the city been made a party, and notice given it of the application for a receiver, it* can hardly be presumed that it would have executed the draft of agreement of settlement pending the application. '
Wo appearance has been entered or brief or argument filed for the appellee.
The order appointing the receiver will be reversed.
