Nasby Bldg. Co. v. Walbridge Bldg. Co. limitations is one which is well established by the authorities and is founded on reason. The rule is succinctly stated in 17 R. C. L., 745 and in 25 Cyc. 1063, and is applied in Hart v. Church, 126 Calif. 471 [58 Pac. 910; 59 Pac. 296; 77 Am. St. Rep. 206]; Butler v. Carpenter, 163 Mo. 597 [63 S. W. 823]; Williamson v. Brown, 195 Mo. 313 [93 S. W. 791] and Pinkham v. Pinkham, 60 Neb. 600, 611 [83 N. W. 837]. Manifestly the purpose of the statute of limitations is, as has been well said, to bar actions. and not to suppress or deny matters of defense whether equitable or legal. The lease provides not only for the payment of rent, but it contains appropriate provisions for the payment of the mortgage indebtedness held by the Equitable Life Assurance Society, and the allegations of the pleadings show that the defendant has violated its obligation in that regard as well as its obligation to pay the rent to the Walbridge Building Co. and to pay to the latter company the unsecured indebtedness of $13,000. In view of the fact that the Nasby Building Co. does not claim a rescission or cancellation of the lease on account of the alleged fraud, but seeks only to recoup damages by reason thereof, if the judgment in the court of common pleas had proceeded only to the extent of adjudging that the Walbridge Building Co. was entitled to the possession of the premises, it would be free from prejudicial error; but it goes much farther than simply to adjudge the possession of the premises to that company, and decides that that company shall hold the premises free and clear of all claims of the Nashy Building Co. on account of the matters averred in the pleadings. We have already seen that as to some of these claims, the claim for damages set up by the Nasby Building Co. is purely defensive and is not barred by the statute of limitations. The judgment will be reversed and the cause remanded for further proceedings according to law. Chittenden and Kinkade, JJ., concur. Hamilton County Appeals. ERROR-MUNICIPAL CORPORATIONS RECEIVERS. [Hamilton (1st) Court of Appeals, June 18, 1917.] Jones, Gorman and Hamilton, JJ. EDWARD G. SCHULTZ, RECVR. V. CINCINNATI (CITY). 1. Receiver May Seek Review of Order Allowing Claim Made by Appointing Court. A receiver may appeal or prosecute error to the order of the court appointing him in allowing a claim against the estate which he is administering. 2. Water Rents Due Municipality not Made Preferred Claim Against Personalty. In the sence of any ordinance, by law or regulation thereunder, Secs. 3957 and 3958 G. C. create no lien on property for water rent in favor of a municipality. A city's claim for water rent which accrued prior to the appointment of a receiver is not a preferred claim to be paid out of proceeds of personal property which was sold under the order of court by such receiver. ERROR. Burch, Peters & Connolly, for plaintiff in error. Chas. A. Groom, City Sol.; Saul Zielonka and Charles Tatgenhorst, Jr., Asst. City Sols., for defendant in error. JONES, P. J. The question to be determined in this case is whether the city of Cincinnati is entitled to be paid, as a preferred claim, a claim for water rent, which accrued prior to the appointment of a receiver, out of the proceeds of personal property which was sold under the order of court and reduced to cash by the receiver. The claim of the city is that it has a first, valid and subsisting lien for the full amount of accrued water rent upon the money in the possession of the receiver. This claim was allowed in the trial court and the receiver ordered to pay the claim in full. To this order error was prosecuted in this court. It is contended at the outset that the receiver has no power to except to the order of the court which appointed him, or to file proceedings to review that court's order in regard to the payment of this claim. In Alderson, Receivers, Sec. 588, p. 797, the law is thus stated: "Every claim presented against a fund in the hands of a Schultz v. Cincinnati. receiver, if contested before the court, becomes in effect a suit against the receiver, which is ended by a final judgment allowing or rejecting the claim, and any party to the contest dissattisfied with the result may have the proceedings revised on appeal. The receiver as a party defendant to an action has the same right to appeal from a judgment of the court affecting the interests of the estate represented by him that the party or corporation to whom the estate originally belonged would have had if the suit had been brought by them." If this claim had been prosecuted as an independent suit by the city against the receiver with leave of court, instead of by a motion in the nature of an intervening petition in the case where the receiver had been appointed, there would be no question as to the power of the receiver to secure a review of the judgment of the court. Smith v. Folsom, 80 Ohio St. 218, 219 [88 N. E. 546]; Webb v. Staesel, 80 Ohio St. 122 [17 Dec. 320]. The power of a receiver to secure such an appeal was sustained in Felton v. Ackerman, 9 U. S. C. C. A. 457 [61 Fed. 225]. In the opinion of the court by Taft, J., it was said (p. 458): “While it is true that the receiver is an arm of the court in the administration of the property, yet where persons intervene to obtain relief against him because they can not obtain full relief in any other forum, the issue raised by his answer to the petition makes the proceeding an adversary one, in which the receiver represents the interests of the owners of the property, of which he is temporarily in charge. If, as such representative, he feels aggrieved by an order of the court made in an adversary proceeding of this character, it is difficult to see why he should not be permitted to have the order of the court reviewed by the appellate tribunal to whom any other litigant may resort. Certainly, the owners of property, if aggrieved by the order against the receiver, might appeal, and there would seem to be no justice in preventing the temporary custodian of their property from doing so." See also Bosworth v. Terminal, R. A. 26 26 U. S. C. C. A. 279 [80 Fed. 969]. The rule is thus laid down in High, Receivers (4th ed.), Sec. 264a: "As to the right of a receiver to appeal from orders and Hamilton County Appeals. judgments entered in the course of the receivership proceedings, it is held that he has the same right of appeal from an adverse judgment for the recovery of funds pertaining to his receivership as the party over whom he was appointed would have had." See also Beach, Receivers, pp. 295 to 296. Under these authorities we hold that the receiver in this case was entitled to prosecute this error proceeding for the review of the order complained of. The city claims that water-rents due it are a preferred claim under Sec. 3958 G. C., which is as follows: "For the purpose of paying the expenses of conducting and managing the water works, such director may assess and collect from time to time a water rent of sufficient amount in such manner as he deems most equitable upon all tenements and premises supplied with water. When more than one tenant or water taker is supplied with one hydrant or off the same pipe, and when the assessments therefor are not paid when due, the director shall look directly to the owner of the property for so much of the water rent thereof as remains unpaid, which shall be collected in the same manner as other city taxes.' There is no question but that a municipality in Ohio can construct water works and supply water to its inhabitants, and the director of public service of a city is authorized to manage such water works and to make such by-laws and regulations as he may deem necessary for such purpose, which regulations, under Sec. 3957 G. C., shall have the validity of ordinances. It is not, however, contended that any regulation of the city of Cincinnati has been made or attempted by virtue of which this claim for water rent would become a lien or first charge upon the assets of the Warner Equipment Company in the hands of its receiver, nor is any specific statute, ordinance or regulation pointed out by the city under which this claim would be deemed a preferred claim as against the receiver. It is argued that water rents are in the nature of taxes and that as general taxes become a lien against real estate, in some manner this claim should be a lien against this fund. In Alter v. Cincinnati, 56 Ohio St. 47 Schultz v. Cincinnati. [46 N. E. 69; 35 L. R. A. 737], the Supreme Court in its opinion by Burket, J., at page 67, said: "Water rents are not, strictly speaking, taxes, and certainly not taxes on property to be regulated under article twelve of the Constitution." Even taxes are not a lien upon personal property, and become such only after judgment. There is no question but that under proper regulations the city could protect itself in the collection of water rents by providing that the water be turned off and not turned on again until all back rent had been paid. Mansfield v. Manufacturing Co. 82 Ohio St. 216 [92 N. E. 233; 31 L. R. A. (N. S.) 301; 19 Ann. Cas. 842]. No doubt other methods might be devised equally efficacious to secure back water rents in cases of the appointment of a receiver for the management of manufacturing property, but no provision by law has been pointed out whereby this particular claim can be held a preference against the fund in the hands of this receiver. The judgment below must therefore be reversed. |