123 Ill. App. 364 | Ill. App. Ct. | 1905
delivered the opinion of the court.
Three questions are presented by this appeal: First, the appointment of a receiver over the property of appellants Bockovens without notice to them, and without making them parties to the original bill under which the appointment was made and without any showing in the bill or by affidavits in support thereof of an emergency for the appointment, no notice or attempt to give notice of the application to appellants being shown; second, the striking from the files the intervening petition of Nathan C. Dow Company, a claimant to the right of possession and to funds in the hands of the receiver; third, the adjudication of the rights of appellants Bockovens under their lease of the premises in question and to the funds in the receiver’s hands by a decree dismissing the original and amended bills and the cross-bill.
No emergency is shown by the original bill under which the receiver was appointed or by the verification of it which is by complainant’s solicitor in the ordinary form of affidavit. The want of notice to appellants is not excused. Ho attempt even is made to excuse it. The statute requires notice to be given or a showing to be made that the rights of the complainant will be unduly prejudiced if an injunction is not issued, before any court or master shall grant an injunction. “The appointment of a'receixmr, without notice, with such poxvers as are conferred on the receiver by the order appealed from, is a much more serious matter than the granting a temporary injunction. In the latter case action is merely enjoined, while in the former the defendant may be summarily dispossessed of His property.” Consolidated S. M. & M. Co. v. Loeber, 96 Ill. App. 128.
It is the settled practice both in England and America to require a moving party to give due notice to the defendant over whose effects he seeks the appointment of a receiver in order that his property may not be wrested from him upon an ex parte application. High on Receivers, 3d ed., sec. 111.
It is not an ansxver to this proposition to say that appellants are not in a position to raise the question for the reason that the only order appealed from is the final decree entered August 31, 1904. Appellants Bockovens were not made parties to the bill until December 4, 1902, and therefore had no opportunity to appeal from the order. Furthermore, the final decree disposes of the rents collected from the property and the possession of the property itself, through an adjudication upon the validity of appellants’ lease. Thus the whole record of this case regarding the taking of the possession from the appellants and the disposition of the possession so taken is, xve think, brought before us by this appeal.
The action of the court below was without warrant in laxv or equity and cannot be justified from any point of view. High on Receivers, 2nd ed., sec. 660.
The intervening petition shoxved that the Nathan C. Dow Company had a claim to the fund in the hands of the court. The petitioner had a right to file it, and it became the duty of the court to hear and determine the right of the petitioner to the fund. It was improper to dismiss the petition or strike it from the files the day after it was filed without a hearing. Illinois Trust & Savings Bank, Ex’r., etc., v. Robbins, 96 Ill. App. 575.
The primal and fundamental reason why this decree cannot stand is that at the time when it was entered there existed no pleadings for it to stand upon. The decree dismisses the original bill and amended bill and cross-bill and intervening petition, while at the same time it adjudicates the property rights of appellants. The decree leaves no pleading in the record to sustain it. Butler v. Brown, 205 Ill. 606; Dorn v. Geuder, 171 id., 362.
The decree is reversed and the cause remanded.
Reversed and remanded.
