Estabrook v. Stevenson

It appears that on May 1, 1884, Experience Estabrook leased to Samuel Stevenson certain real estate in the city of Omaha for the term of ten years, with the privilege reserved to the lessor of terminating the lease at the expiration of five years of the term; that by a provision of the lease the lessor, at the termination of the term, should pay the lessee for such improvements as had been made or placed on the real estate by the lessee during the life of the lease, the value of such improvements to be determined by arbitrators. The lessor gave notice of his election to terminate the lease at the end of the five years, *379arbitrators were chosen as had been provided, who made an award, to which the lessor objected and filed his petition in the district court of Douglas county setting forth the facts. To the petition the lessee and the party to whom he had conveyed his rights in the premises answered, and of the issues joined there was a trial and a resulting judgment, by which it was established that the lease had been terminated at the end of the five years. The award of the arbitrators as to the value of the improvements was set aside, and the court in its decree adjusted this and other matters. Prom this judgment an appeal was taken to this court by Samuel and Mary Stevenson. During the pendency of the appeal, Experience Estabrook made application to the district court for the appointment of a receiver to take possession of the property, to have the charge thereof, to collect the rents and retain the same subject to the orders of the court. This application was made of date November 18, A. D. 1893, and was resisted by the Stevensons. But on final hearing, December 30, 1893, the application was granted and a receiver appointed, who qualified, gave his bond, and assumed his duties. On November 30,1893, during the pendency of the application for, and before the appointment of, the receiver, the building of the leased property was damaged by fire and certain repairs rendered necessary to again put portions of the premises in a fit condition for occupancy. Some of the repairing was done by parties employed by Stevenson, other parts of the necessary work he executed himself, all being completed before the appointment of the receiver. It is stated in Stevenson’s affidavit that the full rent for the month of December, 1893, would have been $125, but it was lessened by reason of the injury to the building by fire to the sum of $42, which he retained to pay him for his own personal services in repairing the building. Subsequent to his appointment, an application was made for an order of the court directing the receiver to pay, out of rent moneys collected by him, the accounts of parties for ma*380terial used and labor performed in and about tbe repairs on tbe property of tbe injuries caused by tbe fire, and which were made and completed prior to his appointment. Tbis application was supported by affidavits, and on bearing, February 24, 1894, was sustained and tbe receiver ordered to pay tbe accounts. From tbis order an appeal to tbis court was perfected for Experience Estabrook, who bas since died, and tbe cause bas been revived in tbe name of bis executrix, Caroline Estabrook.

There is but one brief filed in tbe cause, that for appellant. Tbe appeal was prosecuted by virtue of tbe provision of section 275 of tbe Code of Civil Procedure, wherein appears tbe following: “All orders appointing receivers, giving them further directions, and disposing of tbe property may be appealed to tbe supreme court in tbe same manner as final orders and decrees.” Tbe repairs were made and tbe debts contracted before tbe property was in tbe custody of tbe court or its receiver, and not by order of either court or receiver. Tbe parties making them bad no lien or claim against tbe premises, so far as tbis record discloses, and tbe accounts were not liens or charges on or against tbe fund in tbe receiver’s bands of rents collected after be took charge of tbe property. Tbe repairs were ordered by and made for Samuel Stevenson, and, unless liens bad been perfected against tbe property, they bad no other or further character than bills against him, and were accounts of bis individual or personal indebtedness. We can discover no tenable grounds upon which tbe order to the receiver to pay these accounts from tbe rent money in bis bands could be based. It was erroneous and must be reversed and tbe application for tbe order denied.

Judgment accordingly.