114 Wis. 436 | Wis. | 1902
Respondents’ counsel, pointing to Allen v. Boberg, 108 Wis. 282, 84 N. W. 421, for support, contend that the order is not appealable. In the case cited the order dismissed the suit as to one defendant, leaving it to proceed to final judgment as to others. We fail to observe any similarity between that situation and the one before us. The order in question was not entered between the parties to the action against the Kerstens. It was entered in a special proceeding instituted therein by the trustee in bankruptcy, who appeared in the state court for that purpose only. If the action were to proceed to judgment, an appeal therefrom would not bring the order up for review. That terminated
Connell, being a sole trustee, possessed, as such, at the time of his death, of personal property, the legal title thereto passed to his representative, the administrator of his estate. Such representative was bound to execute the trust1 so far as necessary to preserve the subject thereof till he should account to a successor appointed by the court, and was entitled to take all necessary proceedings to secure a settlement of the deceased receiver’s accounts. Perry, Trusts, §§ 341-344; 2 Woerner, Adm’n, § 321; Schenck v. Schenck, 16 N. J. Eq. 174, 182. Therefore it was proper to allow him to be substituted as appellant in this court for the purpose of prosecuting this appeal to a final determination.
The federal court did not decide that the bankruptcy proceeding entirely superseded the jurisdiction of the state court in the receivership casé, leaving the latter no authority in the matter other than to order the property in the hands of the receiver turned over to the trustee. That is clearly indicated by the opinion of the district judge, which appears in the record. It was competent for the federal court to declare the Kerstens bankrupts and to take such proceedings as were necessary to have a trustee elected and qualified to administer their affairs in that court, leaving the question of its jurisdiction over the property in the hands of the receiver appointed by the state court, for subsequent determination. It took that course. The trustee then presented to the latter court for consideration the question of his authority over the estates of the bankrupts in its charge. He did not, so far as appears, obtain any adjudication of his right in the matter or judicial advice in respect thereto in his own jurisdiction. On the hearing on such question in
How the order appealed from can be justified upon the theory of the court below is not entirely clear, as a reference to the following authorities will indicate: In re Whipple, 6 Biss. 516, 29 Fed. Gas. 929, 11 Nat. Bankr. R. 524; In re Clark, 5 Fed. Gas. 835, 838; Clark v. Binninger, 39 How. Prac. 363; In re Lengert Wagon Co. 6 Am. Bankr. R. 535,
“When property is lawfully placed in tbe custody of a receiver by tbe court wbicb appoints sucb receiver, it is in tbe custody, and under tbe protection and control, of sucb court, for tbe time being, and no other court has a right to interfere with sucb possession, unless .it be some court which has a direct supervisory control over tbe court whose process has first taken possession, or some superior jurisdiction in tbe premises. In tbe present posture of this case it does not appear that this court has sucb superior jurisdiction in tbe premises, or sucb supervisory control over tbe state court, in respect to the property in question, as to authorize it to take away from the state court the possession of sucb property, or to enjoin tbe receivers from further interfering with sucb property.”
In Thornhill v. Bank, opinion by Woods, Circuit Judge, it was beld that a law specially providing for tbe winding up of insolvent banking institutions and tbe distribution of their assets, — a law similar, in many respects, to tbe law of this state under wbicb tbe proceeding was commenced in tbe state court in which tbe receiver was appointed, — was a bankrupt law, and was suspended by tbe bankrupt act. Judge SbamaN, in bis opinion in tbe bankruptcy proceeding in question, recognized the legality of tbe proceedings in tbe state court appointing tbe receiver, and tbe existence of some doubt as to tbe power of tbe federal court to take tbe property from him in a compulsory way; that a solution of that question might involve a determination as to whether our state law in regard to winding up insolvent banking corpora
We will forego deciding the questions which the federal court avoided, as above indicated, until some real necessity therefor exists. We consider that the decision of the court below in that regard is not before us; that the only question here is this: The right of the federal court to take and administer the property in the bankruptcy proceedings being conceded, did the trial court err in not protecting its receiver as regards his charges for expenses and services by adjusting his account and ordering it paid out of the funds in his hands before relinquishing the same to the trustee in bankruptcy ? In that we can see no abuse of discretionary, administrative power, since, as before indicated, the court’s action was based on an adjudication that the receiver’s reasonable charges constitute a lien on the fund in his hands to be discharged only by the payment thereof, and that such lien will incumber the fund in the hands of the trustee.
While in Mauran v. Crown C. L. Co. (R. I.) 50 Atl. 387, relied upon by appellant’s counsel, the receiver was ordered paid out of the funds in his hands, and he was required to turn over only the residue to the trustee in bankruptcy, the court recognized that the proper course to pursue was a mere matter of judgment, — the exercise of judicial administration. If the trustee accepts the fund involved under the order, he will necessarily do so subject to the terms imposed thereby.
Eegarding the order appealed from as a mere discretionary order, since no abuse of discretion is found the appeal should be dismissed. McElroy v. Minn. P. H. Co. 109 Wis. 116, 85 N. W. 119.
By the Court. — So ordered.
