Fisher v. National Mortgage Loan Co.

274 N.W. 568 | Neb. | 1937

Munday, District Judge.

This case has been previously heard by the court and an opinion adopted. Fisher v. National Mtg. Loan Co., 132 Neb. 185, 271 N. W. 433. Subsequently oral argument was ordered on the separate motion of each of the parties for rehearing.

We are convinced that the law of the case as set forth in syllabi 1, 2, 3, 4, 5, 6, 8 and 9, in the former opinion, is correct, and it is adhered to in this opinion.

However, on reconsideration we are also of the opinion that the facts shown by the record, most of which are set out in the former opinion, require: The appointment of a receiver for the defendant corporation; that an increased amount should be allowed for the services of .appellant’s attorneys and that the district court should determine on evidence such reasonable amount that should be so allowed for their services, both in the district court and this court, and tax the same as costs in the case; that the judgment of the district court should be reversed and the case remanded.

The former opinion contained the following order:

“The judgment of the district court is affirmed in that part wherein a receiver is not appointed and wherein it does not allow any attorneys’ fees, expenses and other claims paid or obligations created by the defendant Hartigan for and in behalf of said corporation, and wherein it does not change the salaries of the officers of the corporation. In all other respects said judgment is reversed and it is ordered that the defendant Hartigan pay to said corporation the sum of $24,800 with interest thereon at 6 per cent, per annum from January 1, 1934; that the defendant corporation pay the sum of $400, taxed as costs, to plaintiff for plaintiff’s attorneys for services to them in the district court and in this court in this case, and that the appellees pay the other costs taxed in the action both in the district court and in this court. Affirmed in part and reversed in part.”

This order should be set aside and considered deleted from the opinion, and in lieu thereof the following order substituted :

That the judgment of the district court is reversed and the cause remanded to that court for the appointment of a receiver by that court for the defendant, National Mortgage Loan Company, to liquidate and wind up all the affairs of said corporation; that the district court determine on evidence the attorneys’ fees that should be allowed appellant’s attorneys for services in the case and tax the same as costs in the case; that the defendant Hartigan pay the said corporation the sum of $24,800 and interest thereon at 6 per cent, per annum from January 1, 1934; that said receiver take charge of the assets and affairs of said corporation to the end that said corporation shall be liquidated and its affairs wound up, and do such things as are legal and ought to be done with reference to all claims of every nature against said corporation, and do the same as to recovery of excessive salaries, if any, taken by officers of the corporation, and do the same as to all other matters of the corporation, all under the direction of the' district court; that the attorneys’ fees so taxed as costs for appellant’s attorneys be paid by the defendant corporation, and that all other costs both in the district court and this court be taxed to the appellees.

To the extent set forth in this opinion, the former opinion and syllabus 7 thereof are modified so as to conform with this opinion.

Motions for rehearing overruled.

Former opinion modified.