refusing to allow an appellant to challenge the validity of an order- appointing a receiver in a second appeal where the appellant did not challenge the receiver’s appointment in his first appeal
How later courts described this case
- refusing to allow an appellant to challenge the validity of an order- appointing a receiver in a second appeal where the appellant did not challenge the receiver’s appointment in his first appeal
Written by the judges who cited it.
The opinion
SANBORN, Circuit Judge
(dissenting). It is conceded that the defendant in this case is not entitled to recover of the receiver appointed by the court the interest on the $5,000, the proceeds of the flax, from February 1, 1900, to June 1, 1901, the time during which he kept this money in his control. That, however, is not the question presented by this case. This is an appeal from a judgment of taxation of costs against the complainant. The defendant below (the appellant here) claims that he is entitled to recover against the complainant, as costs, the damages which he suffered by the detention by the receiver of this $5,000 from February 1, 1900, to June 1, 1901. The complainant brought a bill in equity, and caused this receiver to be appointed, and caused the flax to be taken into his possession, against the will and over the objection of the defendant. After this had been done, the defendant stipulated with the plaintiff, “reserving all of his rights and waiving none whatsoever by this stipulation,” that the re-* ceiver might sell the flax at private sale for $5,000, and might hold the money in lieu of the flax until the final determination of the action, “without prejudice to any claim for damages or otherwise that the defendant might have against the complainant by reason of the appointment of said receiver or the taking of said flax.” The final determination of the action was that the complainant never had any cause of action against the defendant, or any right to the appointment of the receiver, and his bill was dismissed. The defendant then pre *134 sented his items of costs and damages against the complainant, among which was the item for interest upon the $5,000 during the one year and four months that it had been held by the receiver by reason of the wrongful commencement and maintenance of the action by the complainant. In my opinion, the amount of interest upon this $5,000 at the legal rate for the time that it was thus detained by the action of the complainant is the proper measure of damages for that detention for which the complainant is liable, and against whom it should be taxed in this action. The defendant is entitled to recover of the complainant all the damages which he sustained by the wrongful taking of the flax by the receiver on the complaint of the plaintiff. If the flax had been held without sale, the defendant would have been entitled to recover the value of the flax and the value of its use during the time it was detained by the receiver. When it was sold," and converted into money, the defendant was entitled to that money. The wrongful maintenance of the action for a year and four months after the money was obtained by the receiver deprived the defendant of the interest upon it during that time, and this amount should, in my opinion be taxed against the complainant, and recovered by the defendant in this action.
2. The appellant has made a motion that the appellee be required to pay the costs of printing the portions of the record which he designated on the ground that they were irrelevant to the issues presented to this court. These portions of the record consist of inspectors’ and weighmasters’ certificates (folios 72 to 94, record), the designation of parts of the record to be printed on the original appeal (folios 160 to 163), and the appellant’s assignment of errors on the original appeal. The motion of the appellant in this behalf should be granted, because none of the matters here specified relate in any way to the issues presented upon this appeal.