American Trust & Savings Bank v. Frankenthal

Mr. Justice Gary

delivered the opinion oe the Court.

This case is here upon the same record as Albert M. Myres against these defendants in error. (See last preceding case.)

The plaintiff in error is the receiver mentioned in that case. The error complained of, is that the court did not direct the allowance to the receiver to be paid, in whole or in part, by Emanuel Frankenthal, or out of the property. But there is this difference, at least, in the cases: There, the plaintiff in error did not question the rightfulness of the appointment of, nor the propriety of the allowance to, the receiver. Here • Emanuel Frankenthal, the defendant in error, principally and practically, probably alone, interested, denies both.

We find it quite unnecessary to inquire how far a receiver could be affected by the considerations upon which the other case is decided. The receiver came in and asked the allowance, bringing, as it is alleged, vouchers for expenditures, and proof of services. It should have presented its accounts, and then if not assented to, they should have been referred to a master. See Hayden v. Chicago Title and Trust Co., 55 Ill. App. 241, and the authorities there cited.

The reasons why there should be such a reference are stated in the cases referred to in Huling v. Farwell, 33 Ill. App. 238, and other cases cited in them. If an allowance had been made to the plaintiff in error without such reference, it would have been error per se. But it does not follow because a decree granting relief would have been erroneous on account of the mode of proceeding, that one denying relief is. If equity powers are conferred upon courts of law, the modes of proceeding, where not regulated by statute, should be in accordance with rules which experience has shown to be expedient. Pardridge v. Ryan, 35 Ill. App. 230. The judgment is affirmed.

Separate opinion by Mr. Presiding Justice Waterman.

The receiver in this case took possession of the property committed to his care October 25, 1893, and surrendered the same November 8, 1893. He reports that he expended during these fifteen days in and about the preservation of the property, the sum of $1,027.76. Of this amount $705 was for the services of Pinkerton men, of whom the smallest number employed at any time was five, and the largest, fifteen; his expense for Pinkerton men having been $47 per day. The property thus protected was in a large building known as 240 and 242 East Monroe street, Chicago.

A receiver is the officer of the court, and, as such, entitled in the execution of its orders to its protection. Whoever interferes with the possession of á receiver, disturbs the possession of the court. The courts have at their command for the enforcement of their orders, the sheriff, who has not only his regular deputies and bailiffs, but may summon to his assistance all the able-bodied men in the county.

For a receiver to employ, or a court to sanction, the engagement of the servants of a private detective agency to protect his possession by physical force, is in effect to confess that such a state of disorder and confusion exists that the agencies provided by law for its administration, are no longer sufficient.

It does not appear, and we have no reason for believing, that the sheriff of this county was unable in this case to afford protection to the court and its officers in the discharge of their duties.

Under such circumstances there is no justification for an expenditure of $47 per day to prevent a violent seizure and carrying away of property in the custody'of the court and almost within shadow of the court house.

The record in this case discloses an altogether too current an impression that the rights of parties in and to personal property in litigation are to be determined, not in the orderly course of the administration of justice, but by the private employment of large numbers of men who are expected to, by violence, wrest from others the custody of property in dispute.

It is not merely the right, it is the duty of courts to protect their officers in the discharge of their duties, as well as to see to it that property in its custody is neither carried away in open defiance or furtively taken by fraud. In the discharge of this duty it speaks and acts in the name and power of the people; and its officers have no occasion for asking the force of a private detective agency to enforce respect for, and obedience to, the mandate of the law.