Walker v. Gibson , 1889 Ill. App. LEXIS 492 ( 1889 )

Moran, J.

It is very apparent froni an inspection of the hill, the substance of which is set out in the statement of facts, that James H. Walker was a necessary party, and the court should have entered no order on the bill which would affect the interests or rights of said Walker without requiring that he be made a party and given proper notice. The purpose of having a receiver, so far as such purpose is disclosed by the bill, was manifestly to obstruct said Walker-in obtaining possession of go'ods claimed by him, through the regular remedy provided by law to accomplish that end. To prevent his obtaining his property by the appointment of a receiver, was the same as depriving him of it, and it was indispensable that he should be made a party that he might resist such appointment. Baker v. Backus, 32 Ill. 96.

The order of the court appointing a receiver is not indeed attempted to be defended here by the appellees, but they seek to avoid a review of the order by the suggestion that this court has obtained no jurisdiction of the matter under the appeal as perfected. Walker, it is said, was not a party to the suit, and hence had no right of appeal, and has no standing here on the appeal, and as the order granting the appeal allowed it to Hertz and Walker jointly, Hertz alone has no appeal here. As Walker was not a party to the suit the order was not against him. But it was against Hertz, and the fact that Walker joined in the appeal does not invalidate the appeal as to Hertz. The order of the court allowing the appeal on condition that Hertz and Walker should execute the bonds has been strictly complied with, and it is not suggested that there is any misrecital in the bond of the order appealed from. Willenborg v. Murphy, 40 Ill. 46.

Counsel contend that the above case is overruled in Hillman v. Beale, 115 Ill. 355, but we understand that the principle here applied is not only not overruled by said last mentioned case, but that it is stated as the true point of the former decision.

The case is here, then, as the appeal of Hertz, and the order appointing the receiver must be reversed, as there is not an allegation in the bill which authorizes the appointment of a receiver as against him. It was his duty as an officer of the law, to execute the writ and deliver the property described in it if found by him, to the plaintiff in the replevin suit.

Every reason which exists to forbid the appointment of the receiver as against Walker, who was not a party, save the single one of notice, is also a reason why no receiver should be appointed under the allegations of this bill to prevent Hertz, as an officer, from executing his writ. The bill taken as a whole, furnishes no warrant or authority for the appointment of a receiver as against the judgment creditors or any person claiming a legal title to the goods as against the members of the firm or the sheriff. The order appointing the receiver will be reversed.

Order reversed.