Coburn v. Ames

Morrison, C. J.: The plaintiff brought an action in the District Court against the defendant, for the recovery of the possession of certain lands described in the complaint, and also of a wharf or chute thereto attached or connected therewith, and recovered judgment on the 15th day of June, 1870. From that judgment, an appeal was taken to the Supreme Court on the 17th day of the same month.

After the appeal, and before the hearing in the Supreme Court, that is to say, on the 22nd day of July, 1876, the District Court made an order appointing a receiver to take possession of the property in controversy, to collect the tolls, and generally to manage the same. On the 9th day of October, 1877, the Supreme Court rendered its decision and judgment on appeal, and it was by that Court “ ordered that the judgment be and is hereby modified by striking so much therefrom as includes the wharf and chute below the line of high water, and in other respects the judgment is affirmed ”; and on the 18th day of March, 1878, the judgment of the District Court was modified in accordance with the mandate of the Supreme Court. On the 29th day of that month, in the absence of and without notice to the defendants or their counsel, the judge of the District Court caused to be entered in the minutes of the Court an order discharging the receiver “ from all and singular the duties imposed upon him by the order of this Court, except the accounting for his acts in the receivership aforesaid.” On the 29th day of March, an application was made on behalf of the defendants, to set aside the order discharging the receiver, and for an order commanding him to restore the possession of the wharf and chute to the defendants, which motion was denied by the Court on the 18th day of January, 1879.

On the 9th day of October, 1878, the receiver filed his report, from which it appeared that the balance in his hands was $4,267.45, and on the 8th day of January, 1879, an order was entered settling the accounts of the receiver, and directing him [203]to pay over the balance of money in his 'hands to the plaintiff. From these several orders the defendants have appealed to this Court.

The first ground of error alleged is, that tne receiver was discharged without notice to the defendants, and without being required to redeliver the possession of the wharf to them. It would have been proper practice to have notified the defendants before discharging the receiver. Mr. Daniell, in his work on Chancery Pleading and Practice, volume 2, p. 1447, says: “ A receiver, however, is never discharged by decree, but the application for his discharge is usually made by motion, whereof notice should be served on all parties.” We cannot say, however, that the irregularity was such as to justify a reversal of the order.