
    Russell et al. v. The First National Bank of Red Oak.
    1. Appeal to Supreme Court: facts not -warranting: allowance to receiver. Where the court, by agreement of the parties, had made an allowance of compensation to a receiver, but no appeal was taken from the order of allowance, and, more than six months after the order was made, one of the parties moved the court to set aside and vacate the order, which motion the court overruled, held that, while the allowance was excessive, yet the remedy for the one aggrieved thereby was by appealing from the order of allowance within the time prescribed by statute, and that no appeal to this court from the order overruling the motion to vacate could be entertained.
    
      Appeal from Montgomery District Court.
    
    Saturday December 6.
    Tliis is an appeal from an order overruling an application to set aside and vacate an allowance to a receiver previously-made in the court below.
    
      John Y. Stone and P. P. Kelley, for appellants.
    
      Smith McPherson and W. S. Strawn, for appellee.
   Rothrock, Ch. J.

It appears from the record in the case that prior to the ninth of November, 1882, Russell & Co. had been engaged as merchants in the boot and shoe business; that they had given certain chattel mortgages upon their stock in trade. One of these mortgages was held by the defendant, and other mortgages were held by the plaintiffs and other parties. The defendant was proceeding to foreclose its mortgage upon the stock of goods, and the plaintiffs and other mortgagees commenced actions to restrain the foreclosure. Temporary injunctions were granted, and other creditors intervened in the actions. On the ninth day of November, 1882, all the parties being before the court, it was agreed between them that the sheriff should proceed to sell the stock of goods, and pay the proceeds of the sale into the hands of the clerk of tbe court, to abide the result of the suits. The controversy between tbe parties involved questions as to the-priority of their liens. Under the agreement, tbe sheriff sold tbe goods for over $6,000, and in December, 1882, be paid into tbe hands of the clerk the sum of $6,242. The matter stood thus until the next term of court, and at said term, and on tbe ninth day of April, 1883, a paper was filed in said causes, of which tbe following is a copy: “It is hereby stipulated and agreed that tbe above-entitled actions be transferred for hearing and determination to tbe district court of Mills county, Iowa; that the clerk of this court transmit tbe money in bis hands to tbe clerk of said district court of Mills county, Iowa, and on filing herein tbe receipt of said clerk, and on tbe approval of the report of W. E. Pattison, Esq., as receiver, by this court, that be be discharged and exonerated from all liabilities in tbe premises, and that this court fix and allow bis compensation as receiver.” This paper was signed by tbe attorneys of tbe respective parties. On the same day the report of Pattison, as receiver, was presented to tbe court, and an order was made allowing him tbe sum $400 for his services as receiver.

On tbe eighteenth day of October, 1883, plaintiffs filed a motion to vacate and set aside the allowance made to Pattison, on tbe ground that the same was illegal, excessive, and void, and in violation of law, and that Pattison was not, by order of tbe court, appointed a receiver, and that all tbe 'acts done and performed by him were done as the clerk of said court, and not as receiver. Tbe motion was overruled on tbe ninth day of November, 1883. There is some controversy between counsel as to whether there was a formal order appointing Pattison as receiver. As this question is not, in our opinion, material to a determination of tbe appeal, we have not thought it necessary to resort to tbe transcript to settle it. By tbe stipulation entered into on the ninth day of April, 1882, it was expressly agreed that tbe court should act upon the report of Pattison as receiver, and fix and allow bis compensation as receiver. This was a recognition of bis services as receiver, and an agreement that the court should fix his compensation; and the only question of which appellants could complain was, whether or not the court abused its discretion in making the allowance. The parties expressly gave the court jurisdiction to make some allowance. If the appellants felt aggrieved at the amount allowed, they should have appealed from the order within the time allowed for an apjieal. They did not do this. They did not even file the motion to vacate the order until more than six months after it was made, and they did not attack the order on the ground of accident, fraud, or misconduct of any of the parties. Under these circumstances we cannot entertain the appeal. The allowance made to the clerk appears to us to be greatly excessive. ITis duties as clerk require him to receive and pay out money ordered to be deposited in court. Rut, if we were to reverse the ruling of the court below, we would commit this court to a rule which would enable the parties to evade the statute limiting the 'time within which appeals may be taken, by authorizing appeals from the orders overruling motions to set aside judgments and orders, when the appeals should be taken from the orders or j udgments complained of. The motion in this case is unlike a motion made to retax costs. In this case, Pattison, in his report, upon which the court acted, made a claim of $400 as compensation. The plaintiffs should have then and there resisted the claim, and appealed from the allowance.

Affirmed.  