Colley v. Wolcott

187 F. 595 | 8th Cir. | 1911

ADAMS, Circuit Judge

(after stating the facts as above). The services of the solicitors in this case resulted in rescuing from spoliators a large amount of property, -not only for the benefit of the complainant, but for the benefit of all the stockholders of the Zinc Company, and by means of these services the property was brought under the control of the court. In these circumstances nothing is plainer than that the cost of a restitution of this kind should be borne by those benefited by it. Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157.

[ 1 ] While allowances for solicitor’s fees have sometimes been made in favor of the Complainants in the suit, no reason is apparent why they should not be made directly to those who are entitled to it. They are officers of the court, and should properly be protected, when a trust fund created by them is in the custody of the court and subject •to final disposition by it. It was so held in Central Railroad v. Pettus, 113 U. S. 116, 124, 5 Sup. Ct. 387, 391 (28 L. Ed. 915) where the Supreme. Court said:

“And when an allowance to tbe complainant is proper on account of solicitor’s fees, it may be made directly to tlie solicitors themselves, without any application by their immediate client.” . . .

It would have been better practice if a formal motion had been made for the allowance of the solicitor’s fees. In this way the record in the case would have been more perfect. But this is a matter of practice resting largely in the discretion of the trial court, and its exercise one way or the other cannot be assigned for error. Moreover, no objection was made in the trial court to the method of procedure adopted. It first appears in the assignment of errors, filed almost six months after the decree was entered.

[ 2 j Again it is assigned for error that no evidence was offered on which to base the order allowing the solicitor’s fees. This may and probably does mean that no formal testimony of the amount of services rendered or of the value of such services was introduced. The court recites in the decree, however, that the parties appeared by then-respective counsel, and that the court, after duly considering the report of the special master (who had been appointed to take the testimony and report thereon), the exceptions thereto, and arguments of counsel, entered the decree, including the order for the payment of the solicitor’s fees. In this way it appears that the court had personal knowledge of the facts of the case, of the conduct and services of counsel, and the results achieved by them. Upon this knowledge it could properly act in fixing the value of the solicitors’ services. Farmers’ Loan & T. Co. v. McClure, 24 C. C. A. 64, 78 Fed. 209. It, therefore, cannot he said there was no evidence on the subject before the court.

[3] There was no error in enforcing the payment of the solicitors’ allowance by sale of the property of the Zinc Company. It had been rescued, and was in the custody of the court for such disposition as equity and good conscience dictated. The legal services which resulted in the restoration of the property to the company clearly constituted a meritorious charge in equity upn it.

[4] More than six months before the final decree was entered, the court made an order allowing the solicitors, Currey and Sapp, the sum of $10,000 for their services rendered in the case, but added that the same should be “hereafter paid in such manner as this court may order and adjudge.” In view of this order, the appellees moved to dismiss the appeal, on the ground that it was not taken within six months after the first or preliminary order was made. We do not think that was a final order. In one of its most important features it was reserved for further adjudication. It was most material to make some provision for the payment of the money. The- property was in the hands of the court out of which it might he paid, and out of which in the usual administration of equitable remedies it should be paid; but the court was not then ready to determine that important particular. Tt was, therefore, not such a final determination of the matter as amounted to an adjudication from which an appeal would lie before the final decree was entered in the case. Something was left to he done before the order could be executed. Chase v. Driver, 34 C. C. A. 668, 92 Fed. 780, 787.

The decree of the Circuit Court must be affirmed.