19 Or. 517 | Or. | 1890
delivered the opinion of the court.
This is an application of Joseph Holladay for compensation as receiver for services performed as such, in the care, custody and management of certain property, during the period named therein. The petitioner was appointed jointly with Geo. Weidler as such receiver, and alleges that a reasonable compensation for his services would be the sum of §250 a month, which aggregates for the period during which he performed such services in all the sum
The evidence upon this finding tends to show that there never was any agreement that the petitioner Holladay should not receive any compensation for his services as such receiver, but it does tend to show that there was a general understanding among the attorneys who represented the parties to the suit, and that it was so represented
Question — “I think you and Mr. Strong and others were present at these conversations and all parties were represented. We were present in court here when the matter was presented to the court. ”
Answer — “Yes. ”
Q. — “Wasn’t it stated to the court when this matter was submitted * * * that it would result in a saving to the estate?”
Ans. — “I think I so stated to the court myself; I think I urged it upon the court. ”
Q. — “Saving the salary of the receiver?”
Ans. — “Yes.”
It seems to me that these facts indicate that the matter of saving the expenses of a receiver had been talked over by the attorneys of the respective parties; that they were present in court when the appointment was asked, and when Judge Bellinger stated and urged upon the court, as a reason for the appointment, that it would result in a saving of the salary of the receiver, and that such representation so made became one of the material facts upon which the order for the appointment was predicated. It is true that in this connection Judge Bellinger immediately adds that it was then thought by them that the estate would soon be settled up; that he had no idea it would continue in the way it has, and involve the labor it has
The circumstances already indicated present the parties pro and con by their attorneys before the court, all favoring the appointment asked for, and during the consideration of which it is represented and urged upon the court that the making of such appointment would result in saving the salary of the receiver to the estate; and the court acting upon such representation, makes the order for the appointment, is not such a representation a foundation stone upon which that order of appointment was made, as much so as if the court had so stated in its order, and ought not the petitioner to be bound by it in the absence of any complaint or application for its modification and allowance of reasonable commissions or salary? Was not the court and those interested in the preservation of the estate justified in assuming, at least under such circumstances, that compensation was not expected, and that the services were continued on the terms which induced and secured his appointment? When it is considered that the appointment lies with the court below, who is supposed to be familiar with the transaction or litigation requiring it, and the reasons for it, the ineligibility of the petitioner without the consent of the adverse party, the representation of saving expenses to the estate to secure it, the many reasons, family and otherwise, which will readily occur for