The court may deem an appeal a useless consumption of the fund of the estate, as well also as productive of unnecessary delay in its administration. We doubt not that in all proper cases the court would give the permission for review of the decree, a matter resting largely in the sound discretion of the court, and for an abuse of the discretion the party aggrieved is not with. out remedy.

The principles recognized in Cobbs v. Vizard Invest. Co. supra, seem decisive of this case, and in the conclusion of the opinion

not follow that the receiver, who was in fact the defendant, so far as the issues raised by the petition were concerned, could not also appeal.”

And as representing the creditors and stockholders, a receiver of an insolvent bank may appeal from an order of the court directing a settlement of a claim against it which the petitioner represented was for the interest of all parties. McGregor v. Third Nat. Bank, 124 Ga. 557, 53 S. E. 93. It was said that the receiver was indeed an

before the court.

officer of the court, but that he was ap pointed for the express purpose of representing not only the bank, but also all its creditors and stockholders; that "unless he represented them in the litigation, it would be necessary to bring all of them It was through the receiver that these interested parties had to resist the granting of the relief sought by the plaintiff; and the judgment being adverse to him, it was his right and duty, as their representative, to except thereto, if he or any of them was not satisfied therewith. Their right of review by the supreme court was certainly not cut off merely because he was an officer of court and was, under ordinary circumstances, subject to its orders without question."

Where a judgment was rendered in the Federal court against a corporation, and a receiver appointed by the state court applied to the Federal court for permission to appear specially in the action, and make such defenses as there might be on behalf of the corporation, and for stay of execution on the judgment, it was held that the receiver had a right to prosecute a writ of error to review a judgment denying the petition. Rust v. United Waterworks Co. 17 C. C. A. 16, 36 U. S. App. 167, 70 Fed.

129.

In Gephart v. Taylor, 124 Md. 111, 91 Atl. 772, it was held that a receiver of a firm had a right to appeal from an order of the court dismissing his petition filed on behalf of certain creditors against a former receiver, to enforce an alleged liability to the firm growing out of the administration of the first receivership.

And an appeal was allowed by a receiver of a railroad in Guarantee Trust & S. D Co. v. Philadelphia, R. & N. E. R. Co. 69 Conn. 709, 38 L.R.A. 804, 38 Atl. 792, from

the rule here invoked was declared a salutary one. We adopt, as applicable here, the concluding sentence of that opinion: "The court may, in its discretion, authorize its receiver to bring its decree under review by appeal, but in this case it has not done so, and the appeal must be dismissed." Appeal dismissed.

Anderson, Ch. J., and McClellan and Mayfield, JJ., concur.

Petition for rehearing denied December 17, 1914.

an order directing him to restore a schedule of wages to employees.

It is the duty of receivers to appeal if they believe injustice has been done to the corporation they represent. Strauss v. Carolina Interstate Bldg. & L. Asso. 118 N. C. 556, 24 N. E. 116.

See also Ellicott v. Warford, under II. b, infra.

c. Receiver as mere officer of court. cases a receiver has been re

In some

garded as merely an officer of the court, and therefore not entitled to appeal from an order distributing the funds of the estate. The order appealed from has sometimes been one distributing the funds among parrule laid down by the United States Supreme ties to the suit, and therefore, under the Court in the case of Bosworth v. Terminal R. Asso. (discussed under I. a, supra), the receiver would have no right to appeal. But in some cases the right of appeal has been denied to the receiver even where these to whom the funds were ordered paid were not, it seems, parties to the original suit, and would diminish the assets as a whole, and the order appealed from was therefore it would seem was one from which, under the rule generally laid down, the receiver might appeal.

one which

In Chicago Title & T. Co. v. Caldwell, 58 Ill. App. 219, the court, in dismissing an appeal by a receiver from an order for the allowance of a claim against the estate,

said: "A receiver is the mere hand of the court, to do what the court directs. When, in passing upon his accounts, the court charges or refuses to allow items, and he claims that the action of the court does him wrong personally, he may appeal. But if he may appeal from one order in which he has no interest, as to the distribution of assets, he may from every one; and unless he can be charged with bad faith or want of reasonable prudence, his expenses and reasonable compensation must come out of the assets. Next, we will have clerks appealing from directions of the courts to enter orders unwise in the opinion of the clerks."

So, in Gillespie v. Illinois Steel Co. 62 Ill. App. 594, and Dewar v. Ellwood, 98 Ill. App. 46, receivers were held to have no standing to complain of orders of the

court determining the rights of claimants to the property of corporations for which the receivers were appointed.

And in Sutton v. Weber, 100 Ill. App. 360, it was held that a receiver had no right to appeal from an order of the court to pay a certain amount of rent for the store occupied by him, where he had sufficient funds of the estate to pay the same, as he was but an arm of the court, bound to do its bidding, and had no personal interest in what should be done with the money which he was ordered to pay.

So, in Foreman v. Defrees, 120 Ill. App. 486, it was held that a receiver had no right to appeal from an order of the court directing him to pay a claim of certain petition ers for services rendered the defendant in the suit, the court saying that the receiver was an officer of the court, that the assets were under its control, and that the receiver had no personal interest in the question whether the assets in his hands should go to the creditor in question or to other parties. In the three Illinois cases last above cited, the appeals were allowed by the court making the order appealed from.

Also, in Stevens v. Hadfield, 178 Ill. 532, 52 N. E. 875, subsequent proceedings in 196 Ill. 253, 63 N. E. 633, the court said that it was of no consequence to whom the court should ultimately order the balance in the hands of the receiver paid, and that he could not complain of an order directing pay ment of such balance to a certain party, where the court had previously made an order or judgment from which he had not appealed, passing upon the amount of moneys received and paid out by him, and finding that he had a stated balance on hand, to be paid out as the court might thereafter direct.

A receiver, it was said in Herrick v. Miller, 123 Ind. 304, 24 N. E. 111, cannot question the correctness of an order made by the court for the disposition of the funds in his hands; to permit him to question the correctness of such orders would be to permit a constant "rebellion of the hands against the head," which would result in the utmost confusion, and would wholly destroy the usefulness of the office of receiver. So, in Stanton v. Andrews, 18 Ill. App. 552, it was said: "A receiver is an officer of the court, and has been figuratively styled the hands of the court. With that figure in mind, this case [an appeal by a receiver from an order of the court directing payment out of the funds in his pos

session, of a certain amount found due a creditor] appears very much like a mild rebellion of the hands against the head."

In Stanton v. Andrews, supra, it was held that a receiver has no right to appeal from an order of the court fixing the amount due a creditor, and ordering him to pay the same out of a fund which the court had previously directed him to retain for this purpose, where all other creditors and claimants had been paid except the one in question, whose claim was then in litigation, although the order directing the receiver to

retain the fund further provided that, upon the settlement of the claim then in litigation, the receiver might retain the residue, if any, as additional compensation for his services as receiver.

And it was said in Ruhl v. Ruhl, 24 W. Va. 279, that a receiver's holding of the property was the holding of the court for the one for whom the possession was taken, and that the receiver had no more right to interfere in the litigation, or ask for a revision of the decree or orders affecting the rights or claims of the parties, than an entire stranger to the cause.

That a receiver cannot in any sense be regarded as representing any of the parties to the cause was the rule laid down in Re Colvin, 3 Md. Ch. 278. The order appealed from was, however, one discharging the receiver and directing an account. It was said: "It is, moreover, conceded that the receiver has no rights himself, and, of course, cannot appeal or interfere in any way in the conduct of the cause, unless he can be considered as representing those at whose instance he was appointed. But to view him in that light would be to give him a character inconsistent with the nature of his office. How can he be the officer of the court and the hand of the court, and at the same time the representative of the interests of certain of the parties to the cause? The court must act by its officers and agents, and there is as much propriety in calling the court the representative of any of the parties to the cause, as its agents and officers, who derive their authority from the court, and are removable at its discretion. If the receiver may prosecute this appeal on behalf of the parties whom he may be supposed to represent, why may not he interfere at any and every stage of the cause, when he may think the interest of those parties requires it? But surely this could never be tolerated. The proceedings in the cause, except, indeed, where his own accounts and allowances are concerned, are as to him res inter alios acta.

I hold it, therefore, to be too clear for doubt, that a receiver has no right to intermeddle in questions affecting the rights of the parties or the disposition of the property in his hands; that he cannot in any sense, or to any extent, be regarded as the representative of any one or more of the parties to the cause, and that he must retire from his office, and give up the property committed to his custody, whenever required so to do by the court."

See also cases under III. infra.

II. Orders affecting receiver personally.

a. Compensation and settlement of accounts.

A receiver, because of his personal interest therein, may appeal from an order affecting the amount of his compensation or denying him any compensation. Bosworth v. Terminal R. Asso. 174 U. S. 182,

43 L. ed. 941, 19 Sup. Ct. Rep. 625 (see quotation from this case under I. a, supra); Magee v. Cowperthwaite, 10 Ala. 966; Herndon v. Hurter, 19 Fla. 397; McAnrow v. Martin, 183 Ill. 467, 56 N. E. 168; Sutton v. Weber, 100 Ill. App. 360; Beilman v. Poe, 120 Md. 444, 88 Atl. 131; Esmeralda County v. Wildes, 36 Nev. 526, 137 Pac. 400. "It may well be that a receiver who is the mere custodian for the court cannot appeal from an order directing him to turn over the property in his hands. But when the order erroneously fixes the amount of property in the receiver's hands, and directs him to turn over more than he has in custody, it is essential to the protection of his rights that he should be allowed to appeal." How v. Jones, 60 Iowa, 70, 14 N. W. 193. To a similar effect is Merriam v. Victory Min. Co. 37 Or. 321, 56 Pac. 75, 58 Pac. 37, 60 Pac. 997.

A receiver in a foreclosure suit, although not a party to the suit, may appeal from a decree therein settling his accounts. Hinckley v. Gilman, C. & S. R. Co. 94 U. S. 467, 24 L. ed. 166.

It is only from orders affecting the receiver's compensation, or from orders refusing to allow items in his accounts, that a receiver may appeal. Foreman v. Defrees, 120 Ill. App. 486. To a similar effect is Haigh v. Carroll, 197 Ill. 193, 64 N. E. 375. And in Cobbs v. Vizard Invest. Co. 182 Ala. 372, 62 So. 730, the court said: "A receiver may undoubtedly appeal from orders and decrees affecting his claim for fees and expenses, or involving him in personal responsibility," citing Thornton v. Highland Ave. & Belt R. Co. 94 Ala. 353, 10 So. 442.

A receiver may appeal in his individual capacity from an order which determines that after his discharge from office he will be personally liable for obligations which he transacted officially. Re Premier Cycle Mfg. Co. 70 Conn. 473, 39 Atl. 800.

Where the receiver's accounts or personal rights are affected, it was said in Ruhl v. Ruhl, 24 W. Va. 279, that he must necessarily have the same means of redress that any other party so affected would have, and that it could not be doubted that where a court makes a void decree by which it directs its receiver to pay over funds in his hands, and, because he fails to obey such decree, attaches and imprisons him for an indefinite time, he is entitled to have the order of imprisonment reviewed.

See also Stanton v. Andrews, under I. c, supra, and Polk v. Johnson, under III., infra.

b. Removal.

It is well established that a receiver has no right to appeal from an order merely removing him from office, and not settling his accounts or affecting the allowance of his compensation or expenses. Bosworth v. Terminal R. Asso. 26 C. C. A. 279, 53 U. S. App. 302, 80 Fed. 969, modified and affirmed in 174 U. S. 182, 43 L. ed. 941,

19 Sup. Ct. Rep. 625; Re Premier Cycle Mfg. Co. 70 Conn. 473, 39 Atl. 800; L'Engle v. Florida C. R. Co. 14 Fla. 266; Conner v. Belden, 8 Daly, 257; Witherbee v. Wither. bee, 55 App. Div. 151, 66 N. Y. Supp. 1039; State ex rel. Casedy v. Inter-State Fisheries Co. 36 Wash. 80, 78 Pac. 202.

"The holding of a receiver is the holding of the court, and he has no right to ask for a review of the order removing him any more than a stranger to the cause." Conner v. Belden, 8 Daly, 257.

A receiver, it was said in Bosworth v. Terminal R. Asso. 26 C. C. A. 279, 53 U. S. App. 302, 80 Fed. 969, modified and affirmed in 174 U. S. 182, 43 L. ed. 941, 19 Sup. Ct. Rep. 625, has no right to appeal from a decree removing him from his position, for that is a matter of discretion with the court appointing him.

And in State ex rel. Casedy v. Inter-State Fisheries Co. 36 Wash. 80, 78 Pac. 202, the court said: "No matter how much the receiver may feel aggrieved at the action of the court in removing him, he individually cannot complain. A party to the action has an interest in the personnel of the receiver, and it might be that, if the court should arbitrarily remove one and appoint another, he could have the orders reviewed in some way, but no such right belongs to the receiver. He may have orders relating to his compensation, his accounts, or his acts while receiver, reviewed, when he is aggrieved by such orders, but whether he personally shall or shall not continue as receiver is a question he has no right to litigate."

A receiver has no right to appeal from a mere order of removal which does not settle his accounts or deny him compensation, even though it direct him to turn over to his successor all the property of the estate in his possession and the balance of the money in his hands as shown by his final account. Young v. Irish, 104 Minn. 367, 116 N. W. 656.

In Young v. Irish, supra, the court, however, stated that the receiver had the right of appeal if the order was susceptible of the construction that it was in effect a settlement of his accounts and a refusal to allow him compensation.

A receiver has no right to appeal from an order of the court discharging him and directing him to account. Re Colvin, 3 Md. Ch. 278. The receiver, it was said, was the hand of the court, and the holding of the receiver was the holding of the court for the one from whom the possession was taken, and therefore the receiver had no rights whatever, and no more authority to ask for a revision of the order removing him than an entire stranger to the cause.

The contention was denied in Re Colvin, supra, that the receiver had the right of appeal because the order discharging him directed him to deliver over the property to the administrator pendente lite, it being said that it was immaterial what the court did with the property, provided the receiver was discharged from his responsibility as such, and that it could not be questioned

but that he would be so discharged by obeying the order of the court in this instance. So, in Ellicott v. Warford, 4 Md. 80, it was held that a receiver had no right to appeal from an order removing him from office and directing him to deliver to the administrator pendente lite the personal property of the estate. The contention was denied that the receiver should have the right to appeal as representing the parties interested, especially in view of the fact that other parties in interest had brought independent appeals from the same order.

A receiver has no right to appeal from an order discharging him in which his expenses and compensation are properly provided for. Montpelier Cup & Metal Works v. Dilsaver, 169 Ill. App. 279.

But where an order discharging a receiver fails properly to protect him in the expenses which he has incurred in caring for the property, he may appeal. Ibid.

So, a receiver may appeal from an order removing him which is a reflection either upon his competency or integrity, or both, and which fails to protect him against expenses which he has incurred. Flinn v. Hanbury, 157 App. Div. 207, 141 N. Y. Supp. 844.

III. Necessity for leave of court.

As stated above (I. a) the question of the necessity for a receiver's obtaining leave of court to appeal has been considered in comparatively few cases, it being apparently generally assumed that if the receiver had such an interest or stood in such a representative position as entitled him to appeal, an appeal would lie as in other

cases.

The decision in COFFEY v. GAY, that a receiver cannot appeal from an order of the court appointing him in which he has no personal interest, unless authorized by the court so to do, is supported by the cases of Cobbs v. Vizard Invest. Co. 182 Ala. 372, 62 So. 730; First Nat. Bank v. C. Bunting & Co. 7 Idaho, 27, 59 Pac. 929, 1106; Polk v. Johnson, Ind. App. 76 N. E. 634; McKinnon v. Wolfenden, 78 Wis. 237, 47 N. W. 436, approved in Union Nat. Bank v. Mills, 103 Wis. 39, 79 N. W. 20. See also Re City & County Invest. Co. L. R. 13 Ch. Div. 475, 42 L. T. N. S. 303, 28 Week. Rep. 933; and Re Silver Valley Mines, L. R. 21 Ch. Div. 381, 47 L. T. N. S. 597, 31 Week. Rep. 96, which were cases of liquidators appointed under the English practice.

In First Nat. Bank v. C. Bunting & Co. 7 Idaho, 27, 59 Pac. 929, the court, in hold ing that a receiver appointed in an action against a bank could not appeal without permission of the court, from an order declaring deposits in his possession to be a trust fund, and directing him to pay them to the state and certain counties which had intervened, said: "It should be borne in mind that this is not an action against the receiver, but that in this action the receiver was appointed. Then the receiver has no personal interest in the judgment from

which he appeals. It is of no personal interest to the receiver whether he pays the money mentioned in the several judgments to the respondent counties, or whether he pays them to the general creditors. It was his duty to obey the orders of the court appointing him, of which he is only an agent. He had no right to appeal from said orders."

So, in McKinnon v. Wolfenden, 78 Wis. 237, 47 N. W. 436, it was held that, unless authorized by the court so to do, a receiver as such could not appeal from an order of the court appointing him, confirming the report of a referee as to the amount due on certain mortgages, as the receiver was a mere servant or agent of the court to do its bidding, and, without its consent, could not be heard to question by appeal the regularity or propriety of its orders.

And in Cobbs v. Vizard Invest. Co. 182 Ala. 372, 62 So. 730, it was said that without leave of court a receiver has no right to appeal from an order of the court appointing him, respecting the conflicting claims of creditors; that he is the mere agent of the court for the collection and distribution of the assets of the insolvent corporation of which he is appointed receiver, under orders of the court which fully protect him, and in this disposition of the property he has no personal interest, except as to orders affecting his claim for fees and expenses, or involving him in personal responsibility; that the distribution of the fund among creditors concerns them only.

It was held also in Cobbs v. Vizard Invest. Co. supra, that the receiver was not authorized to appeal from an order of the court appointing him, decreeing a deposit to belong to one of two claimants, by the fact that he was authorized to contest and resist the allowance of any claim to the extent that it was unjust or illegal, to collect and reduce the money to assets, and to employ legal counsel for all such purposes, "and for any other purpose in the discharge of his duty as such receiver." This power and duty the receiver, it was said, had exercised as to the item in dispute by contesting the claim in the lower court.

To allow receivers in all cases to review the rulings of the court under whose appointment they act, without first obtaining authority for that purpose, would tend to the consumption of the fund in the payment of costs and attorneys' fees, rather than to the conservation of the interest of those for whose benefit insolvent funds are administered. Ibid.

"A receiver is a mere officer of the court. His first duty is to obey its orders. He has no discretion, speaking generally, as to the application of funds which are in his hands by virtue of the receivership. He holds them strictly subject to the order of the court, to be disposed of as the court may direct. Being a mere agent of the court, he has no authority to appeal from orders made by it in the pending pro