57 Wash. 117 | Wash. | 1910
The plaintiff in this case instituted two actions against defendant Richardson as receiver of the Shore Lumber Company, and others, to foreclose two certain chattel mortgages covering property which had formerly been in the possession of the Shore Lumber Company, but had been sold by the receiver under an order of the court made in an action prosecuted by McIntosh & Swan against the Shore Lumber Company and H. Wilson. These actions were begun against the receiver after permission of the court had been first obtained. The first mortgage covered certain sawmill
A motion is made to dismiss the appeal, for the reason, as it is alleged, that a receiver has no right of appeal. In some cases, as for instance from an order distributing the funds of the estate, it is usually held that a receiver has no right of appeal; but where the duty is put upon him of defending the assets of the estate or protecting it from unwarranted or unlawful claims, we do not understand that this right has ever been denied. Alderson, Receivers, § 246; Beach, Receivers, §§ 295, 296; Bosworth v. Terminal R. Ass’n, 80 Fed. 969; Felton v. Ackerman, 61 Fed. 225; 17 Ency. Plead. & Prac., 874.
See, also, Hallam v. Tillinghast, 11 Wash. 20, 52 Pac. 329. The motion to dismiss is denied.
This brings us to the main issue. Without deciding that it was proper practice, but admitting for the purpose of this case that respondent had a right to institute the two independent actions against the receiver, we think that the judgments of the court cannot be allowed to stand without some modification. Although a sale had occurred, the property—
The point is also made that there is nothing in the record to show that Wilson ever obtained title to the lumber and logs, the property described in the $300 mortgage made by him in favor of Bates Brothers. Respondent says in his brief that the testimony of respondent shows that he did have title, but a careful reading of the testimony fails to disclose anything that would warrant such a finding. Mr.
The judgment of the lower court, in so far as the $900 mortgage is concerned, will be affirmed, less the amount of attorney’s fees allowed by the court. As against this amount appellant may offset the actual cost of advertising and conducting the sale of the sawmill property, without any allowance for attorney’s fees. Brundage v. Home Sav. & Loan Ass’n, 11 Wash. 288, 39 Pac. 669. The lower court will find this item and enter judgment accordingly. In so far as the court has adjudged the foreclosure of the $300 mortgage and directed payment out of the funds in the hands of the receiver, its judgment will be reversed. Appellant will recover costs on appeal.
Rudkin, C. J., Fullerton, Morris, and Gose, JJ., concur.