38 F. 281 | U.S. Circuit Court for the District of Eastern Missouri | 1889
In accordance with the decree heretofore entered, (35 Fed. Rep. 433,) the master has filed his report. An application is now made by complainants’ solicitors for an allowance of attorneys’ fees, to be taxed as costs against the defendants. The claim, as made, appears to be a claim for compensation for services rendered as solicitors for com■.plainants in this case, and also for services rendered to complainants in the state court, in obtaining a judgment against the Kehlor Milling Com-pan3', on which* the proceeding in the federal court was based. It is clear that this court has no authority to tax against the defendants any fees due from the complainants to their solicitors for services rendered in the suit in the state court, although the judgment obtained in that suit forms the basis of the proceeding in the federal court. It is equally clear that the costs as between solicitor and client in the suit pending in this court cannot be taxed against the defendants for a greater sum than the statute allows. It is well settled that when, under a bill filed by one beneficiary in a trust, in behalf of himself and all other beneficiaries, a fund is recovered and brought into court for distribution, the court may tax a reasonable solicitor’s fee as costs, and order it to be paid out of the fund so recovered. Trustees v. Greenough, 105 U. S. 527; Banking Co. v. Pettus, 113 U. S. 116, 5 Sup. Ct. Rep. 387. This rule rests upon the ground that where one litigant has borne the burden and expense of a litigation that has inured to the benefit of others as well ás himself, those who have shared in the benefits should contribute to the expense. In that class of cases it is customary to tax against the fund realized a fee in favor of complainant’s solicitor, before any distribution is ordered. But even this rule would not authorize the court to tax 'the costs as between solicitor and client against the defendants. Defendants are liable for a fee of $20, taxed under section 824, Rev. St. U. S. If any further fee is taxed, it must be taxed against a fund actually or constructively in the custody of the court for the purpose of distribution. The master has reported that under the decree heretofore made the amount due to the complainants from the defendants is $1,281.94. He also reports that J. M. Whit-comb, Jack & Co., and Henderson, Freen & Co., who, as unsecured creditors of the Kehlor Milling Companjr, have intervened in the cause since the decree was rendered, are entitled to further amounts aggregating $2,617.15. The parties who have so intervened have unquestionably been benefited by the litigation inaugurated by complainants in behalf of all unsecured creditors, and, under the rule announced in the case of Trustees v. Greenough, supra, they should contribute ratably to the payment of a reasonable fee to complainants’ solicitors. A final order
