Union National Bank of Chicago v. Mills

103 Wis. 39 | Wis. | 1899

PaRdeen, J.

The motion to dismiss the appeal must be denied. The settlement and allowance of the receiver’s account is a “ special proceeding ” in the action, within the meaning of subd. 2, sec. 3069, Stats. 1898. The order of the court fixing the amount of the receiver’s compensation, and directing the payment over of the money remaining in his hands, is “ a final order affecting a substantial right,” and is therefore appealable. See Collins v. Case, 25 Wis. 651. The case of McKwnon v. Wolfenden, 78 Wis. 237, has no application to the facts here presented. In that case the receiver appealed from an order in the action made before his appointment without leave of court. The court very properly said that without such authority it was not competent for him to take the appeal.

The power and duty of courts to fix the compensation of their own receivers is well established. In the absence of statutory regulation the matter is left entirely to the determination of the court from which he derives his appointment. High, Receivers, § 781. We have no statute bearing upon the subject. So far as we are advised, ño rule has been established in this state for determining the amount of compensation to be allowed receivers. In some states the courts-have seen fit to fix such compensation by analogy to the .cases of guardians, executors, or other persons occupying-fiduciary relations. High, Receivers, § 185. The difficulty, however, of establishing any inflexible rule is manifest. There are, no doubt, cases in which the receiver’s duties- and labors are exceedingly difficult and onerous, and in which his compensation fixed on an established rate- of percentage would be wholly inadequate. Erom the very nature of litigation, the amount of responsibility and labor required of a receiver must vary, not always in proportion to the-amount involved. A general rule well recognized is that a receiver’s compensation should correspond with the degree-of business capacity, integrity, and responsibility required in the management of his trust, and that a reasonable and fair compensation should be allowed, according to the circumstances of the particular case. This leaves the matter wholly in the discretion of the judge making the appointment. His decision cannot be reviewed except for manifest abuse. He is presumed to know the circumstances and situation of the trust property, the amount and kind of labor required to manage and handle it to the best advantage, the-business ability and skill the receiver has manifested in the-discharge of his duties, the responsibilities and difficulties-encountered in the performance of his trust; and from his-knowledge of the situation he is bound to allow the receiver a fair and reasonable allowance for his services, and no more. If he is in doubt as to what will be a reasonable allowance, he should do as was done in this case,— take the testimony of men of experience in such matters, and from that'testimony and his own Itnowledge of the situation fix the receiver’spay at such an amount as would seem just and fair in the premises. The language of Mr. Justice Winslow in Ford v. Ford, 88 Wis. 122, is directly applicable to the facts in this •case. He says: “In the present.case the court is fixing the value of the labor of its own officer in the transaction of the business of the court. The county judge has necessarily more intimate knowledge of the amount, kind, and worth of the labor performed than any one else. While the evidence of experts is helpful, and proper to be considered, we do not consider it absolutely binding on the court. The statute expressly says that such extra compensation shall be allowed as the county court shall judge reasonable. This evidently contemplates that the court shall exercise its sound discretion in the matter, and is not bound to allow exorbitant sums, though there may be evidence, uncontradicted, which supports such exorbitant charges. The final test is, What does the court, in view of the evidence and its own knowledge of the facts, judge reasonable ? ”

If we were to dispose of this case on the question of preponderance of evidence alone, we should not feel compelled to reverse this order. It does not appear that the receiver’s duties were particularly difficult or burdensome. After the inventory was made and the logs were sawed, which occupied not to exceed forty-five days at the outside limit, he had but little else to do than to sell the lumber. The court allowed him for six months’ time in all, at the rate of $200 per month. The receiver admits that he kept no record of the days he spent in connection with the business, or the time actually engaged. According to his best estimate, he had not been engaged to exceed 130 days. The court allowed about 180. Under the circumstances, we see no abuse of discretion.

By tile Court.— The order appealed from is affirmed.