Hayden v. Chicago Title & Trust Co. , 55 Ill. App. 241 ( 1894 )

Mr. Justice Gary

delivered the opinion of the Court.

On the 12th day of January, 1894, there were pending in the court below two chancery suits which had been consolidated, to which the appellant had been made party defendant, and in which the appellee had been appointed receiver of the assets of the Henry Dibblee Co., the principal defendant.

On that day, which was Friday, the appellee filed what was intended as a final report, in which it asked that $403 be paid to its solicitors and that it retain $400 for services.

An order was entered that unless objections should be filed by 10 o’clock a. m. of the 15th, which was Monday, the ■ report should be approved and the receiver discharged.

The record shows no notice to anybody that such an order would be applied for, but the solicitor of the appellant heard of it the day it was entered, and after 10 o’clock on Monday filed objections. The order was made absolute the next day. He had notice late in the afternoon of Monday, that the court would be applied to next morning to make the order absolute, but did not attend.

If the record showed any justification of this latter order, or that the objection to it were such as neglect would waive, it would be affirmed on this appeal from it, but the record presents no such case. “We must form our conclusions from such lights as the record affords. In a chancery case, that must show sufficient to sustain the decree, if it is to be sustained at all.” Truchard v. Warner, 18 Ill. 142.

First. There is no proof of any services by either the re_ , ceiver or the solicitors. Even the receiver’s report is without the sanction of an oath, the affidavit of its second vice-president thereto attached, being in the form of the second one commented upon in Heffron v. Rice, 40 Ill. App. 244.

Second. A receiver should present his accounts before the court in such shape that the parties in interest may be so informed thereby, that they may assent to their correctness. People v. Columbia Co., 12 Hun 585; Stretch v. Gowdey, 3 Tenn. Ch. (Cooper) 565.

But if they are not assented to, the general rule as to accounts requires that they be referred to a master. Beach, Receivers, Sec. 747; Cowdry v. Railroad, 1 Woods, 331.

That general rule is shown by the cases referred to in Huling v. Farwell, 33 Ill. App. 258. Ho tice to parties interested to attend before the master must be given. Acme Copying Co. v. McLure, 41 Ill. App. 397; Strong v. Allen, 44 Ill. 428.

The point decided in the case last cited, that a court of review may review a master’s report without exceptions first filed below, perhaps deserves further consideration.

It is objected by the appellee that the appellant was not a party below. It is true that in the prayer for process his name was not included, but it was in the charging part of the bill and summons was sued out against him. His objections to the receiver’s report were on file, and his standing in court recognized by the appellee by serving his solicitor with notice, the day before the order appealed from, was made. Ten days before that, the resignation of the appellee, as receiver, had been accepted, and the receivership of a receiver appointed in a case pending in the same court wherein the appellant was complainant against the same principal defendant, was extended to this cause.

We regard the appellant as having such a standing as entitled him to appeal from the order of January 16, 1894, and it is reversed and the cause remanded, that the just compensation to the appellee may be ascertained by further proceedings not inconsistent with this opinion. Be-versed and remanded.