94 Ill. App. 396 | Ill. App. Ct. | 1901
delivered the opinion of the court.
The contentions of counsel for plaintiff fn error are, that so much of the decree as reserves a lien to defendant in error is erroneous, and that the appointment of defendant in error receiver, and the allowance to her of $50 per month, are erroneous.
The question as to the lien is not argued by counsel for plaintiff in error, nor is it pointed out in what the error, if any, consists, and therefore the objection might be deemed waived. However, in view of the fact that defendant in error is the owner of an undivided half of the premises, and had expended $2,000 in lessening the incumbrances, and prayed in her cross-bill for general relief, and the allegation in the bill of defendant in error that the incumbrances were jointly created by the parties, which allegation the court finds proven, we can not sustain the objection that the lien was improperly reserved. The allowance of the lien is warranted by the pleadings and the findings of the court, and plaintiff in error not having preserved the evidence is not in a position to question the order reserving the lien. University of Ill. v. Globe Bank, 185 Ill. 514, 525; McIntosh v. Saunders, 68 Ib. 128.
It is objected that, defendant in error being a party in interest, her appointment as receiver was improper; but counsel say they do not care to urge this objection. While as a general rule a party in interest should not be appointed receiver, there are exceptions to the rule. High says:
“Unless under special circumstances, as in partnership cases in some instances, a party to the cause will not ordinarily be appointed, without the consent of the other party.” High on Receivers, Sec. 70; see also Iroquois Furnace Co. v. Kimbark, 85 Ill. App. 399.
In the present case defendant in error was an owner of an undivided half of the premises and in possession. The bill of plaintiff in error was to set aside certain deeds on the ground that their execution was fraudulently procured, and the sole contest between the parties was as to whether the deeds were so procured. The only mention in the pleadings as to an allowance to defendant in error, is in her answer, wherein, after averring the number and ages of her children and that she was supporting them, she claims that she should be appointed receiver, etc., and receive not less than $50 per month for her support and that of her children. The decree, after appointing her receiver, provides “ that the said Uaomi Meissler may deduct from the rents and income of said premises the sum of $50 per month for her services as such receiver, and for the expenses, support and maintenance of herself and her said children.” This language plainly allows the sum of $50 per month partly for contemplated services as receiver and partly for the support of defendant in error and her children. The defendant in error was appointed receiver by the same order which fixed her allowance, so that at the time she was appointed she had performed no services as receiver. We know of no precedent for such practice. The usual way of fixing the compensation of a receiver is to refer the cause to a master to ascertain the services performed and report as to the compensation to which the receiver is entitled (3 Daniell’s Oh. Pr., Secs. 2277 and 2352), or for the court, on hearing evidence in open court of the services performed, to fix the compensation. The amount of compensation is not, in general, fixed till the passing of the receiver’s first account. 2 lb., Sec. 1745. Obviously the cempensation of a receiver for services as such can not be fixed until he has performed some services. As before stated, the object of the bill in this case was to obtain a decree setting aside two deeds, and there is nothing in the pleadings to sustain a decree allowing defendant in error anything for the support of herself and children.
The decree will be affirmed except as to so much thereof as orders “ that the said Naomi JVIeissler may deduct from the rents and income of said premises the sum of $50 per month for her sendees as such receiver, and for the expenses, support and maintenance of herself and her said children,” and the said part of said decree will be reversed, each party to pay such party’s costs of this court.
Affirmed in part and reversed in part.