The cause is submitted on motion and on the merits. Appellee's motion is not sufficiently insisted upon in brief to merit further consideration. Georgia Cotton Co. v. Lee,196 Ala. 599, 72 So. 158. A phase of the case is reported as Walker v. Pitts, 210 Ala. 516, 98 So. 278.
The receiver had the right of application to the court for the ascertainment of his reasonable compensation to be allowed by the court. De Graffenried v. Breitling, 192 Ala. 254,68 So. 265. The source of his authority and direction was the court. However, no error was committed in referring the matter of fact to the register so that testimony might be taken on that question in aid of the ascertainment and allowance to be made by the court.
The register reported that the last receiver's accounts had not been finally passed, although there had been periodic or monthly reports of his doings as such trustee. It was further reported that no order of reference had been made as to the accounts of, and amount of compensation for, the former receiver, L. F. Webb.
The references in the decree to the accounts of the last receiver were merely a recital of the fact that the same had been passed in the sense that they had been duly made, rendered, or filed, and were therefore before the court for final audit and adjudication. When the decree as a whole is considered as to this, such was its effect. When there is final decree, in the sense of a full and final consideration of all the accounts, to the allowance of compensation to the first receiver, the respective doings and items of each can be considered, except only as to items and allowance that have been adjudicated and fixed on the former and on this appeal. *Page 647
It is insisted by appellee that appellant's exceptions to the report of the register were not duly filed. The register's report was of date June 27th, and the decretal order of reference had provided that the "report shall lie on file for one full day for exceptions," pursuant to rule 94, Chancery Practice, Code 1907, p. 1557. Though that decree was held open for further orders, the court did not extend the time for excepting to the register's report. The complainant, appellee here, filed exceptions thereto on June 28th, on the date required by the decree. The exceptions for appellant bear a filing date of July 2, 1924. The court takes judicial knowledge of the fact that the circuit court adjourned by operation of law on June 28, 1924. Lewis v. Martin, 210 Ala. 401,98 So. 635. Thus the exceptions were not filed until after the court had finally adjourned by operation of law, and the matter was not kept open by the decree to the next term for the purpose of filing exceptions to the register's report. Rule 94, Ch. Pr. Code 1907, p. 1557; Gen. Acts 1915, p. 707.
It may be stated that the amount of the receiver's compensation is a matter primarily for the exercise of the sound discretion of the court having custody, direction, and control thereof, and will not be disturbed except for manifest error. Clifford v. Montgomery, 202 Ala. 609, 81 So. 551; Magee v. Cowperthwaite, 10 Ala. 966; Trustees of Improvement Fund v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; Stuart v. Boulware,133 U.S. 98, 10 S.Ct. 242, 33 L.Ed. 568.
Mr. High, in his work on Receivers (4th Ed.) § 781, p. 915, says:
"The power of courts of equity to fix the compensation of their own receivers is well established, and results necessarily from the relation which the receiver sustains to the court, he being its officer or agent, deriving his functions only from that source. In the absence, therefore, of any legislation regulating the receiver's salary or compensation, the matter is left entirely to the determination of the court from which he derives his appointment. And in making an allowance the court is not confined to evidence formally introduced, but may act on its own knowledge and judgment as to the reasonableness of the charge in connection with what has been done by the receiver in the discharge of his duties. And in passing upon the compensation of a receiver an appellate court will ordinarily defer much to the judgment of the court below by which the receiver was appointed, that court having had the supervision of his conduct."
Many authorities are cited in support of this text.
It will not be necessary to discuss the evidence in detail as to the compensation allowed the last receiver. It was sufficient to support the decree according to the circumstances of the particular case. Such allowance was a judicial question for the court, after considering all of the facts and material circumstances, among which were the responsibility assumed by the receiver, his fitness for the service, his business and financial experience, the time devoted to the trust, the diligence and thoroughness displayed in the discharge of his duties under the direction or supervision of the court. And no doubt the trial court had regard for these facts and for the further fact that this receiver was intrusted with the operation of a public carrier of freight and passengers for hire; and, because of this unusual responsibility and his discharge of his duties in the premises, and the fact that he made of a losing business a successful business, the allowance was no doubt made by the trial court. It may be said that the testimony of Penny, Brittain, Holmes, Spencer, and Cunningham supported that of the receiver as to the value of his services, and also supports the allowance made by the court.
If the several exceptions to the report of the register had been subject to review by filing within the term or time allowed, it is noted that appellant concedes complainant's (appellee's) exception to the extent of an error by the register in the sum of $1,050. Thus was the court warranted in the rendition of a decree at variance with the report of the register and within the presumptions of verity that obtain in such a matter. Pollard v. Am. F. L. Mtg. Co., 139 Ala. 183,35 So. 767; Chancellor v. Teel, 141 Ala. 634, 37 So. 665; Bidwell v. Johnson, 195 Ala. 547, 70 So. 685; Andrews v. Grey, 199 Ala. 152,74 So. 62; Grand Bay Land Co. v. Simpson, 207 Ala. 303,92 So. 789; subdivision 1, § 5955, Code 1907.
The thirteenth to sixteenth assignments of error (as we have adverted to) challenge the failure of the decree to require the receiver to pay over the sum in his hands, less the amount of the balance due on compensation account allowed him by the court, and after charging himself with any amounts the receiver or receivers may have been paid on compensation account. And this he is, or will be, required to do on final disposition and payment of the trust funds into the registry of the court. The final amount required to be paid over by the receiver to the register on full audit of all accounts can yet be required by the court. The decree had been kept open by the court for a due procedure and final adjudication of necessary questions and items not theretofore considered and adjudicated.
The fourth and fifth assignments of error challenge the action of the trial court in finding that Pitts had received $2,815.65 on the agreed $3,000 he was to receive before a division might be had between the parties. This phase of the decree is supported by Pitts' evidence, which was to the effect that the interested parties had agreed upon a "lump sum of $2,200," covering the many *Page 648 items the witness enumerated, and the Jervis and American Oak Leather Company claims of about $800; and that said sums so agreed upon "covered everything up to that time." The reasonable effect of this and his other testimony as to the item of attorneys' fees and costs of court was that said items were included in the agreement for the $2,200, and that they were for the services theretofore rendered, except the services of one attorney before the commissioners' court in resisting applications for other ferry franchises, fixed by the court at $100. We find no reversible error as to this phase of the decree.
The amount of $15.75 paid by Pitts as costs of the appeal in one of the cases having for its object the prevention of the operation of a competing ferry should have been allowed to appellant. We find no evidence that this sum was embraced in the $2,200, or that it had been paid. There was no dispute as to the payment of the item of $15.75. It was paid after the execution of the contract of the parties. And this sum is added to the $181.35 balance decreed to be paid from the profits to appellant. We are not clear as to the item of $128, "costs of the equity cases" — whether or not those costs were included in the agreement of $2,200. If not, the amount should be allowed Pitts. However, we find no error as to the disallowance of the item of $128 for court costs, since the appellant uses language in his testimony broad enough to cover the item, if in fact it was so embraced in the "lump sum" agreed upon.
In ascertaining the indebtedness of the partnership and reciting the same in the decree, the account of J. D. Wyker for $35.22 was not embraced therein. It was exhibited, undisputed, and proven, at the reference. It will be added to the finding of the debts of the partnership contained in the sixth paragraph of the decree, and ordered paid with the other items, viz. attorneys' fees of $100 for "resisting granting of ferry franchise," etc.
The "$87.75" of date "July 23," was paid for flanges purchased by the receiver and not installed on the ferryboat when it was sold by order of court. The purchasers of the boat thereafter using the flanges should account therefor, with interest from the date the same were placed on the boat. The evidence shows that both parties knew of the whereabouts of the flanges; they were only suitable for the purpose for which they were purchased. No bad faith is imputed by the use thereof — it was simply the incurring of a liability for an amount equal to the price thereof, and with interest.
A court of equity has a large discretion in the apportionment of the costs (Manning v. Carter, 201 Ala. 218, 77 So. 744), and this court may do so on appeal in a proper case. The costs are divided between the parties.
Affirmed in part, in part reversed, and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.
On Rehearing.