6 N.W.2d 439 | S.D. | 1942
This is an action to determine adverse claims to realty. The case has been before this court on two former occasions. Lasell v. Yankton County et al.,
The trial court upon agreement of parties appointed Charles Steinbach, clerk of courts of Yankton County, as receiver to take charge of the property involved in the action and to collect rents. When Mr. Steinbach died, the court appointed his successor in office, Margaret Neilson, as receiver. She resigned as receiver and the court on January 13, 1939, appointed John E. Walsh as her successor. It appears that he was in charge of the property without objection until the filing of his account and report on or about January 2, 1941. After hearing, the court in orders made May 20, 1941, approved the account and report and denied the motion of the plaintiff demanding the removal of Walsh as receiver. From these orders, plaintiff appeals.
[1-3] The selection and appointment or removal of a receiver is regarded as a matter of judicial discretion and *68
except for abuse thereof the decision of the court will not generally be disturbed on appeal. Simmons Hardware Co. v. Waibel et al.,
[4, 5] Appellant contends that no allowances for fees to the receiver and his counsel should have been made. The receiver presented his report together with application that compensation be allowed and the court appointed a day for hearing. The report after hearing was approved and the court fixed the compensation of the receiver at $125 and that of counsel at a like amount. It is claimed that the receiver did not in his report account for certain hay on the premises at the time of his appointment and for corn grown thereon *69
in the year 1940. It appears from the affidavits submitted by the receiver that the hay was destroyed by flood waters and that proceeds from the sale of the corn were paid to him after the filing of his account and report. There is nothing in the record to show bad faith or a want of integrity. It is also claimed that the allowance was made in violation of an understanding that no compensation would be paid. A similar objection was overruled in Proctor Gamble Distributing Company, Inc., v. Valet Dry Cleaners Launderers et al.,
[6, 7] It is argued that the receiver employed as counsel one whose interest was hostile to that of the plaintiff because of dual employment. It may be admitted that the reasons which suffice to render the attorney for one of the parties to an action ineligible to be appointed a receiver is applicable to his appointment as counsel for a receiver. High on Receivers, § 188; see Tabour Realty Co. v. Gannon et al.,
It is not necessary to consider the motion to dismiss the appeal and other questions of procedure urged by respondent.
The orders appealed from are affirmed.
RUDOLPH, P.J., and WARREN and SMITH, JJ., concur.
POLLEY, J., not sitting. *70