Urban C. Herndon, Appellant, vs. William Hurter and Sherman Conant, Partners under the Firm Name of William Hurter & Co., Appellees, 19 Fla. 397

Mr. Justice Westcott delivered the opinion of the court. This is an appeal by a receiver from an order made in reference to his compensation, and the motion now made is to dismiss the appeal for want of jurisdiction. In the case of L’Engle vs. The Florida Central Railroad Company et al., 14 Fla., 266, this court held that a motion to vacate an order appointing a receiver was one in which he was entitled to no hearing, and that from the order made upon such motion he could not appeal.^ We there remai’ked : “ When his accounts come up for adjustment his relations will be different.

He will then be a party in interest and may be heard, and it will be the duty of the court to see that his rights are fully protected.” This case was decided in 1873 by this court. In this case we did not say whether an appeal would or would not lie by the receiver under other circumstances. In the case of Hinckley vs. Gilman et al., 4 Otto, 467, decided by the Supreme Court of the United States in October, 1876, it is held that a receiver can appeal from a decree directing him to pay into court a balance found due from him on the settlement of his accounts.

We cannot see under our practice and statutes any reason for a different rule in this State. The appeal here, however, is not from an order concerning the accounts of a receiver or settling balances due by him in the cause. It is an appeal from an order striking out an allowance for costs made by a master to the receiver for compensation under an order of the court.

The order of the court under which the allowance was made by the' master, found as a matter of fact that no debt was due to the parties at whose instance the receiver was appointed, when he was appointed, and ordered that the costs in the matter of the compensation of the receiver be taxed against them. The effect of the order appealed from-is to allow the receiver no compensation. As remarked in the case of L’Engle vs. The Florida Central Railroad Company he is here “ a party in interest and may be heard,” and it is the duty of the coui’t to see that his rights are fully protected.

He is entitled to some compensation, and when the court reverses an antecedent order directing the master to tax his costs against either of the parties, and strikes out the item of compensation allowed him, his rights, independent of any question concerning the future possession of the property, are affected. He is entitled to be heard when the matter of his compensation is in question, and from an order the effect of which is to allow him nothing, he has, under the principles announced in the case of Hinckley vs. Gilman, the right to appeal. D. G. Dawkins and R. B. Archibald for Appellant.

Cockrell & Walker for Appellees. The motion to dismiss the appeal is therefore denied. Ten days are given the respondent in which to file a brief upon the merits. The said motion having been disposed of the case was submitted on its merits. Mr. Justice Westcott delivered the opinion of the court on the merits.

In the statement of this case we have gone more into detail than usual, because it shows that William Hurter & Co. procured the appointment of this receiver after their mortgage debt was fully discharged and an improper resistance of the recovery of a debt justly due a second mortgagee after all their claims upon the property had been fully satisfied.

It would be a strange rule of law that would permit A. upon a satisfied mortgage to have a re-' eeiver appointed of the property of B., and upon proof of the non-existence of the alleged mortgage debt would make the property subject to the payment of the costs of receivership rather than the alleged mortgagee bringing the bill. Here when the plaintiffs, Hurter & Co., had this receiver appointed the mortgagor, the Michigan Lumber Company, owed them nothing. The appointment was in their own wrong and improper.

They should have entered satisfaction upon their decree when it was fully paid, and should have ceased any proceedings based upon the view that something was due upon the mortgage when nothing was due. Instead of thus acting they, under the pretence of a debt due them by the mortgagor, force the second mortgagee to file an original bill against them, thus prolonging the litigation and creating the necessity for the continued possession of the mortgaged property by their receiver.

Under these circumstances William Hurter & Co., rather ■than the property upon which they had no claim, and as to which the order for a receiver was improperly made at their instance, should pay the costs of the receivership incurred at their instance and as the result of their wrongful acts. None of the' parties appealed from the decree directing a taxation of the costs of the receivership against Hurter & Co. Ho rehearing in the matter of the decree was asked, and it stood as the law of the case when the motion in reference to this allowance was made before the Chancellor.

Says the Supreme Court of Iowa in French vs. Gifford, 31 Iowa, 431: “ We think it would he an unjust and inequitable rule if, in all cases, the receiver should be entitled to his compensation upon the fund in his hands without reference to the legality of his appointment. Under the operation of such a rule innocent persons might be made to suffer great loss.” In the case of Verplank vs. The Mercantile Insurance Company, 2 Paige, 438, the order appointing the receiver was set aside, and the Chancellor ordered the receiver to turn over all the property without allowing him any commissions thereon.

Ueither of the mortgagees here seem to have insisted upon a sale of the mortgaged premises.

The receiver was discharged without payment, with a direction that the sums allowed him be taxed against the party who illegally and improperly caused his appointment. ■ The Chancellor having directed by interlocutory decree a reference to the master to ascertain the costs of the receivership, and having properly decreed that Hurter & Co. were liable therefor, and having approved and allowed the allowance made by the master, the receiver was entitled to á decree for that sum against Hurter & Co., and upon such decree the receiver was entitled, under rule seven of the rules governing the Circuit Courts in equity, to “ a writ of execution in the form used in. the Circuit Court in suits at common law.” The statute, McC.’s Dig. 291, See. 7, (to which our attention has been called,) giving a bill of costs taxed by the Clerk and approved by the Judge, the effect of an execution, relates only to the statutory costs allowed by

Chapter 78, Laws of Florida. A simple reference to the original act will make this very evident. We can see no difficulty in the matter of practice here. While these are not statutory costs,.they are costs which may be embraced in a decree as readily as statutory costs, and there is no doubt of the power and propriety of the court issuing an execution upon its decree.

Both of the orders appealed from are reversed, and the case will he remande'd with directions to enter a decree against William Hurter & Co. for the amount of the allowance made to the receiver, to bear interest from the date of the allowance of the same heretofore made by the Chancellor to the date of payment, (Merritt vs. Jenkins et ux., 17 Fla., 599 ;) and that execution be issued upon the decree as authorized by the rules.