This appeal is an attempt by appellant to surcharge the final report of the appellee,
On March 17, 1950 appellee filed in the Pulaski Circuit Court (in which the receivership was pending) his final report as Receiver of the Better Way Life Insurance Company. In this report appellee showed $10,079.29 realized from the Poinsett County mortgage foreclosure case; listed five items (totaling $5,623.84 and interest) as claims previously allowed by the Court's orders in the receivership; and listed three claims (totaling $587.80) as still pending for allowance. Appellee prayed for a reasonable fee for his services as Receiver and also for an order of distribution to close the receivership.
Thereupon, appellant Marlin filed exceptions to each of the eight claims and charged that the Receiver had been guilty of negligence in the entire proceedings to such an extent that he was entitled to no fee, and also that all of the eight claims should be charged against the Receiver, personally. On April 22, 1950 there was a hearing on the Receiver's report, and Marlin's exceptions; and a judgment was entered denying all of the said exceptions and approving—with slight modifications—the Receiver's report. From that judgment Marlin has appealed.
As to the five claims previously allowed by the Court in the receivership matter: each was heard in open court at some previous term and none of the evidence on any of the five claims is in the present bill of exceptions; so, because of the absence of the evidence—and independent of other defenses—appellant necessarily fails in his attack on each of these five claims. As to the three claims allowed by the present judgment: one was for $80 for the Receiver's bond premium; and another was for $7.80 for publication of notice. We affirmed the allowance of these claims. The third claim was that of C. W. Garner, Attorney, for $500 for services rendered, at the request of Marlin, for the Better Way Life Insurance Company, in the course of the receivership. The Court allowed this claim in the amount of $250, and we affirm such allowance.
The only remaining matter is the Court's allowance of a fee of $750 to Harrison for all of his services as Receiver. This item is the one most bitterly contested by the appellant whose counsel, in the well prepared brief filed here, cites many cases and text to support the rules: (a) that a receiver occupies a fiduciary relation and is governed by the general rules applicable to trustees; (b) that a claim to be presentable and provable in receivership must be one against the corporation or person whose property is in receivership; and (c) that if the assets of the receivership be wasted through the negligence of the receiver, then he will be personally charged with the resulting loss.
These are wise and salutary rules, but Harrison has not violated any of them: (a) in everything that he did in this case, he was faithful to the trust imposed on him; (b) this Court has put the stamp of approval
ROBINSON, J., not participating.