White v. White

THOMPSON, J.

Lewis S. Hart (also named as Louis S. Hart) has appealed from an order denying his application for an order directing the receiver in this action to pay him auctioneer’s commissions in the sum of $1500 to satisfy an asserted lien on the proceeds of a sale of personal property which is involved in this suit. It is claimed this lien was created by a contract of employment which the appellant had with one of the litigants. The application for payment was based on an order to show cause which was determined on conflicting affidavits. The appellant was not a party to this suit and did not intervene therein.

This suit was brought to cancel a written agreement settling the property rights between Pauline Starke White and Jack White, her husband, on the ground that the contract was procured by fraud. The complaint alleges that in a prior suit Mrs. White was granted an interlocutory decree of divorce from Jack White on June 23, 1931, but that the court failed to adopt the terms of the agreement settling property rights between them, and that their property rights have not been determined.

The complaint prays for a settlement of these property rights and for distribution to the spouses of their allotted portion thereof. The complaint also asks for a sale of the property if necessary and partition of the proceeds thereof, and that a receiver be appointed to take charge of the property pending the litigation. Lewis S. Hart was not a party to this action. He did not intervene therein. The defendants answered the complaint. Subsequently they filed a written confession of judgment. Thereafter, on May 19, 1933, an interlocutory judgment on the pleadings was rendered against the defendants. The written agreement settling property rights was canceled on the ground that it was procured by fraud. The property was directed to be sold and the proceeds thereof distributed equally between the spouses. Joseph Rosenthal was appointed receiver to take charge of the property and sell it as directed by the court. This appellant, Lewis S. Hart, was employed by the

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receiver as an auctioneer to sell the property at public auction. He sold the property and paid the proceeds of sale to the receiver. His commissions as auctioneer were fully paid.

August 5, 1933, the court made an order in this proceeding-directing Pauline Starke White, Jack White and Mr. Rosenthal, the receiver, to show cause why Lewis S. Hart should not be paid $1500 from the proceeds of the sale of the property to satisfy his alleged lien thereon for commissions as auctioneer for selling the property pursuant to a former agreement of employment as auctioneer which he had with Jack White. The order to show cause was heard and determined on affidavits. The affidavit of Hart avers that on April 22, 1933, Jack White employed him as auctioneer to sell the community property involved in this suit in consideration of commissions amounting to 10 per cent of the gross receipts of the sale, together with the further sum of $150 to be expended for advertising the sale; that the affiant then advanced to Jack White the sum of $1500, evidenced by a receipt therefor “to be repaid out of the first proceeds from said auction ’ ’; that the personal property was thereafter sold by affiant at public auction and the proceeds therefrom paid to Mr. Rosenthal, the receiver, who is now possessed of community funds of the spouses in excess of $1500; that said sum of $1500 has not been repaid to affiant and said receiver refuses to pay the same and that affiant is entitled to a lien on said funds to secure the payment of the money so advanced to Jack White.