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Fox v. Hale & Norcross Silver Mining Co.

California Supreme Court · No. 15414 · 1895-08-06 · Published · 108 Cal. 475 · 41 P. 328 · 1895 Cal. LEXIS 876

M. W. FOX v. THE HALE & NORCROSS SILVER MINING COMPANY

Area
civil
Panel
William H. Beatty (author)

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion — Beatty

Beatty, C. J.

The facts of this case and the material parts of the judgment of the superior court are fully set forth in the opinion just filed in case No. 15301. This is a separate appeal by the Hale & Norcross Silver Mining Company from that part of the judgment appointing a receiver of the moneys collected on the execution, and directing him to pay to the plaintiff's attorneys, as compensation for their services, twenty-five per cent of all moneys so collected. Since the appeal was taken it has been voluntarily dismissed by the appellant, so far as the amount of the allowance to attorneys is concerned, so that it now stands as an appeal from that part of the decree appointing a receiver, and involves only the *477question of the power of the court to make such appointment.

There is no doubt, we think, that the case was one in which the court had power to appoint a receiver to carry its judgment into effect. The action was not prosecuted by the plaintiff in his own right or for his own exclusive benefit. He sued in behalf of the corporation to recover a fund in which others were equally interested, and the judgment in his favor was for the use and benefit of the corporation. He was, therefore, not entitled to receive the amount of the judgment himself, but clearly was entitled to an allowance out of the moneys collected of his reasonable expenses, including counsel fees. This right to his expenses was sufficiently shown by the allegations of the complaint, and the prayer for general relief authorized the court to make proper provision for their payment. ' The appointment of a receiver to apportion the fund and pay it over to the parties, according to their respective rights, and subject to the direction of the court, was a proper provision.

The want of findings to support the allowance of attorneys’ fees becomes immaterial in view of the dismissal of the appeal from that part of the decree.

The order appointing the receiver is affirmed.

McFarland, J., Van Fleet, J., Garoutte, J., Henshaw, J., Harrison, J., and Temple, J., concurred.

Rehearing denied.

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