dissenting.
The defendant in the foreclosure proceedings, who is now the plaintiff in this action, was entitled to the possession and use of the premises while the foreclosure proceedings were pending. Of this use and possession she was deprived by the appointment of a receiver. It was finally determined that the receiver ought not to have been appointed. The condition of the plaintiffs’ bond given upon the appointment .of the receiver has therefore been broken and the plaintiff is entitled to recover thereon. The question is as to the measure of damages.
When a court of competent jurisdiction, and with jurisdiction of the parties and to determine the necessity and propriety of a receivership, makes an order appointing a receiver, the receiver so appointed is an officer of the court.. He is such officer of the court not only in the ordinary sense, but also in a special and peculiar sense. The actions of the receiver are the actions of the court. He performs those actions under the general orders of the court, and they are as much the acts of the court as though there had been a special order for the performance of each individual act, so far as the receiver acts only within the scope of the order appointing him. When it is finally determined that the order appointing the *609receiver ought not to have been made, this is a determination that the court has made a mistake, and it cannot he true in any ordinary sense that either the court or the receiver is a trespasser. The statement therefore in the opinion in Haverly v. Elliott 39 Neb. 201, that the judgment of the court that the receiver was wrongfully appointed put the receiver in the position of a trespasser is not to be applied in a general sense. The meaning of the writer of that opinion must have been that, in that particular ease, the rules for estimating damages applicable to trespassers who had converted property were also applicable to the case then being considered.
A court is not to be held to be a trespasser because of an error of judgment in exercising a lawful jurisdiction, and the officer of the court executing that order cannot, for the same reason, be held to be a trespasser. • A receiver acting under the orders of the court made within its jurisdiction is generally considered to be the receiver for all parties to the litigation. If under the orders of the .court he falces possession of property belonging to a party to the litigation, he holds that property under the orders of the court for the party to whom it belongs, to be delivered to that party when the rights of the parties are determined. And in this case, when this receiver under the orders of the court took possession of the property in controversy, the plaintiff in this case was at all times in legal right entitled to have that property returned to her by the receiver, and in that sense the receiver held the property for her and was her receiver. When it was determined that the receiver ought not to have been appointed this plaintiff was entitled to an order upon the ■ receiver to return the property to her, and of course she was entitled to an order to return the proceeds of that .property which had accrued while in the hands of the receiver; and so when the receiver held the rentals of this property, he held them for this plaintiff as her receiver, and, when he ceased to be receiver, ought to have returned these rentals to this plaintiff. This is all *610that the receiver could return to the plaintiff and was not sufficient to satisfy her just claim for damages.. If the amount which the receiver held for her and returned into court to be paid to her was equal to all of the damages which she had sustained, she manifestly could not have recovered in this action; or, more correctly stated, so far as the receiver accounted for and paid over to her, or paid into court for her, the money equivalent of the use of the premises of AVhich she had been deprived, she was not damaged by the, appointment of the receiver. In other respects the measure of damages adopted by the trial court appears to be correct. She was deprived of the use of the premises to which she was entitled. She was therefore entitled to recover the value of such use, less the amount which the receiver accounted for to her. The claim of the defendants to offset against her the amount of costs which had been adjudged against the property in the foreclosure proceedings was correctly refused. In these foreclosure proceedings no deficiency judgment could have been rendered against this plaintiff, who was defendant there, and the judgment for costs was strictly a judgment against the property and was not a personal judgment against this plaintiff. The property was afterwards sold and the proceeds applied .upon the mortgage claim.- The costs accrued in the foreclosure proceedings were a part of the mortgage claim, and the proceeds were first applied in payment of these costs, and afterwards upon the indebtedness, and the remaining deficiency would not be a personal claim against the defendant in those proceedings.
The improvements made upon the property by the receiver ought not to be charged to this plaintiff. These improvements, no doubt, enhanced the value of the property and so benefited the defendants and not the plaintiff. The plaintiff does not get the property, but only the use thereof until the title passed to the defendants under the foreclosure sale. It is not claimed that the rental value during the time plaintiff was entitled to *611the same was increased by these improvements. Apparently the plaintiff was allowed to recover only the rental value of the property as it was when she was dispossessed by the receiver,- and, if so, she was in nowise benefited by the improvements. It devolved upon the defendants to allege and shoAV that the making of these improvements lessened the plaintiff’s damages.. This they have failed to do.
The costs paid out by the receiver ought not to be charged to this plaintiff. No doubt this plaintiff, and all other parties to the suit in which the receiver was appointed, are bound by the final adjustment of the receiver’s accounts by the court. This settlement of the receiver’s accounts shows that these costs were occasioned by the appointment of the receiver. The appointment was wrongful; and that unnecessary costs would be caused by this appointment, and this plaintiff damaged thereby, must have been within the contemplation of the principal and sureties on the bond in suit when the bond was given. If the plaintiff had paid these costs she could, of course, have recovered the amount on this bond. So far as the plaintiff has failed to get the value of the use of the premises that she would or might have received if no receiver had been appointed, she has been damaged by the appointment.
Under the judgment of the district court in this case, as affirmed by 'the majority opinion, the plaintiff recovers the full amount of the rental value of the property, and the money that is paid into court by the receiver goes to the defendants. If the law had been strictly observed upon the trial, the plaintiff would have been allowed to take the money paid into court by the receiver, and that amount would have been deducted from the damages she would otherwise have been allowed to recover. Possibly, this error might require a reversal of the judgment, and, if so, the costs of this court would fall upon the defendants, and they would be allowed a retrial of the plaintiff’s claim of damages. Apparently the result would be sub*612stantially the same, and, if so, no injury has been done the defendants. It may therefore he said that I dissent from the reasoning of the opinion and concur in the result.