Herndon v. Hurter and Conant-Argument of Counsel. indebted to the complainant in the sum of $1,098.85, with interest from May 21, 1877; that from the answer of the defendants and the master's report it appeared that on the 14th of July, 1877, a final decree for $2,332.29 was entered in the Circuit Court of Baker county in favor of William Hurter and Sherman Conant, partners, as Hurter & Co., and that this was a prior lien to the lien of Paul B. Canova. The court recited further in this order that a receiver was appointed on the application of William Hurter & Co. on the 8th day of July, A. D. 1878, to take charge of the mortgaged premises, and that it appeared to the satisfaction of the court from the master's report in this case that at the time of granting said order appointing the receiver, the indebtedness due the said Hurter & Co. had been fully satisfied, and that there was nothing due William Hurter & Co. at that time from the Michigan Lumber Company, and that said receiver should not have been appointed. The record discloses that the receiver had been discharged on the 6th of May, 1879, four days previous to this order,and had been directed to turn over all the property in his charge as receiver to B. S. Roberts, and that he did so turn over the property as directed. On the 24th of May, 1879, the final decree upon the proofs in the case was filed. This decree finds the amount of the debt due Paul B. Canova to be $1.274.78; that the indebtedness of the Michigan Lumber Company to William Hurter & Co. had been satisfied, directs the mortgage prop erty to be sold and the proceeds to be applied to the fees. disbursements and commissions on sales, to attorneys fees, and, so far as necessary, to the payment of complainant's debt, with interest thereon. On the 3d of November, A. D. 1879, the master to whom was referred the matter of the amount to be paid to the receiver, the court having before that time decreed that such Herndon v. Hurter and Conant-Argument of Counsel. compensation should be paid by William Hurter & Co., at whose instance the appointment was made, after taking testimony allowed the receiver compensation as follows: For services 445 days from February 11, 1878, to May 6, 1879, Allowance for one guard for same time at $1 per day. Total $667 445 9 $1,121 This allowance was approved by the then Chancellor on November 3, 1879, and the Clerk of the Circuit Court, on the 11th of July, 1881, certifies the bill of costs in which the allowance is made to be correct. The Chancellor approving this allowance goes out of office, another Chancellor succeeds, and upon motion made seeking his approval of the allowance the Chancellor on the 29th July, 1881, orders that the item of receiver's costs, amounting to $1,121, be struck out. The receiver on the 24th of October, 1881, files his petition before the Chancellor praying for an order commanding William Hurter & Co. to pay forthwith to the receiver or his attorneys the said sum of $1,121, together with interest thereon from the 10th of November, A. D. 1879, and that upon their failure to do so within ten days from and after the order and notice thereof that the said receiver "have as an officer of the court such other and further order as justice demands in accordance with the usual chancery practice in such cases." On the 8th of May, 1882, after hearing, the Chancellor ordered "that the prayer of the petition be denied.” It appears from the recitals in the petition that petitioner shed out an execution against William Hurter & Co. on the allowance of costs made by the master and approved by the Chancellor, but before it was certified to be correct by the Clerk, and that such execution on the 18th of June, 1880, (a date it will be noted prior to the order of the suc Herndon v. Hurter and Conant-Opinion of Court. ceeding Chancellor striking out the allowance to the receiver, such last order being dated the 29th July, 1881,) was quashed for irregularity, by the court. The receiver now appeals from the two orders of the succeeding Chancellor, dated respectively the 29th July, A. D 1881, and the 24th of October, A. D. 1881. Cockrell & Walker for the motion. D. C. Dawkins and R. B. Archibald contra. MR. JUSTICE WESTCOTT delivered the opinion of the court. This is an appeal by a receiver from an order made in reference to his compensation, and the motion now made is to dismiss the appeal for want of jurisdiction. In the case of L'Engle vs. The Florida Central Railroad Company et al., 14 Fla., 266, this court held that a motion to vacate an order appointing a receiver was not in which he was entitled to no hearing, and that from the order made upon such motion he could not appeal. We there remarked: "When his accounts come up for adjustment his relations will be different. He will then be a party in interest and may be heard, and it will be the duty of the court to see that his rights are fully protected." This case was decided in 1873 by this court. In this case we did not say whether an appeal would or would not lie by the receiver under other circumstances. In the case of Hinckley vs. Gilman et al., 4 Otto, 467, decided by the Supreme Court of the United States in October, 1876, it is held that a receiver can appeal from a decree directing him to pay into court a balance found due from him on the settlement of his accounts. We cannot see under our practice and statutes any reason for a different rule in this State. The appeal here, however, is not from Herndon v. Hurter and Conant-Opinion of Court. an order concerning the accounts of a receiver or settling balances due by him in the cause. It is an appeal from an order striking out an allowance for costs made by a master to the receiver for compensation under an order of the court. The order of the court under which the allowance was made by the master, found as a matter of fact that no debt was due to the parties at whose instance the receiver was appointed, when he was appointed, and ordered that the costs in the matter of the compensation of the receiver be taxed against them. The effect of the order appealed from is to allow the receiver no compensation. As remarked in the case of L'Engle vs. The Florida Central Railroad Company he is here "a party in interest and may be heard." and it is the duty of the court to see that his rights are fully protected. He is entitled to some compensation, and when the court reverses an antecedent order directing the master to tax his costs against either of the parties, and strikes out the item of compensation allowed him, his rights, independent of any question concerning the future possession of the property, are affected. He is entitled to be heard when the matter of his compensation is in question, and from an order the effect of which is to allow him nothing, he has, under the principles announced in the case of Hinckley vs. Gilman, the right to appeal. The motion to dismiss the appeal is therefore denied Ten days are given the respondent in which to file a brief 11pon the merits. The said motion having been disposed of the case was submitted on its merits. Cockrell & Walker for Appellees. D. C. Dawkins and R. B. Archibald for Appellant. Herndon v. Hurter and Conant-Opinion of Court. MR. JUSTICE WESTCOTT delivered the opinion of the court on the merits. In the statement of this case we have gone more into detail than usual, because it shows that William Hurter & Co. procured the appointment of this receiver after their mortgage debt was fully discharged and an improper resistance of the recovery of a debt justly due a second mortgage after all their claims upon the property had been fully satisfied. It would be a strange rule of law that would permit A. upon a satisfied mortgage to have a receiver appointed of the property of B., and upon proof of the non-existence of the alleged mortgage debt would make the property subject to the payment of the costs of receivership rather than the alleged mortgagee bringing the bill. Here when the plaintiffs, Hurter & Co., had this receiver appointed the mortgagor, the Michigan Lumber Company, owed them nothing. The appointment was in their own. wrong and improper. They should have entered satisfaction upon their decree when it was fully paid, and should have ceased any proceedings based upon the view that something was due upon the mortgage when nothing was due. Instead of thus acting they, under the pretence of a debt due them by the mortgagor, force the second mortgagee to file an original bill against them, thus prolonging the litigation and creating the necessity for the continued possession of the mortgaged property by their receiver. Under these circumstances William Hurter & Co., rather than the property upon which they had no claim, and as to which the order for a receiver was improperly made ai their instance, should pay the costs of the receivership incurred at their instance and as the result of their wrongful acts. None of the parties appealed from the decree directing |