Frank v. Dickey

139 F. 744 | 8th Cir. | 1905

EOCHREN, District Judge,

after stating the case as above, delivered the opinion of the court.

The last assignment of error objects to the amount allowed the appellees for services as attorneys for the petitioning creditors as excessive, taking into consideration a previous very large allowance made to the same attorneys for services rendered by them to the receiver in the matter of the same bankrupt estate. But that allowance was for entirely distinct and different services, of the nature and character of which we are not advised. That allowance for legal services rendered to the receiver, not having been questioned when made, must be presumed to have been proper and just, and can have no bearing on the consideration of the amount which should be allowed for the services rendered to the petitioning creditors. One thousand dollars seems a large allowance for such services, even in view of the unusually large estate of the bankrupts. But the appellees left the amount to be fixed by the referee on his judgment. With his knowledge of all that was done and of all the circumstances, he fixed upon that sum as the proper allowance, and this was approved by the judge. It is, besides, only two-thirds of what was named by the appellant as the value of the same services when he hoped to share in the allowance, and even now he does not assert that is too much, but only that it should be diminished because the same attorneys have .obtained a large allowance for other and entirely different services. No one else objects to the allowance, and we will not under these circumstances attempt to revise it.

The remaining question is whether the appellant is entitled to share in this allowance. By Bankr. Act July 1, 1898, c. 541, § 64 (3), 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], among the debts which have priority is:

“One reasonable attorney’s fee, for the professional services actually rendered, irrespective of the number of attorneys employed, to the petitioning creditors in involuntary cases.”

The services of the attorneys for the petitioning creditors in instituting bankruptcy proceedings in any case and carrying them forward to the adjudication benefit equally, in proportion to what is owing to them, all the unsecured creditors of the bankrupt; hence the payment of their reasonable fee from the estate makes this expense fall equitably in the same proportion upon all such creditors. The jurisdiction of the court in any case is invoked by the filing of the first petition which is sufficient, or which can be made so by amendment. It brings within the jurisdiction of the ■court, not only the bankrupt on the service of process, but also all his creditors. No additional petition by other creditors is useful -or contemplated by the act of Congress. In this case the second ■petition, which was filed by the appellant for other creditors than ■those who had first petitioned, was ignored, and no action ever taken ■upon it. It was a useless paper. The adjudication was had alone ■upon the petition first filed by the creditors represented by the appellees, after it was by leave of court amended. Those creditors were, therefore, the only creditors on whose petition the court •acted and made the adjudication, and they were the only petitioning creditors in the case within the meaning of the act. The petition filed by the appellant was a disregarded nullity. The appellant certainly did not become one of the attorneys for the petitioning creditors by demurring to their petition. That was an adversary proceeding, taken with the apparent intent of defeating their petition, and would have been successful but for the permitted amendment. 'The claim of the appellant is that, because by his demurrer he called the attention of the court and also of the appellees to the defects of the petition they had filed, resulting in its amendment on leave, he performed a meritorious service for the petitioning creditors, so that, although never retained or employed by them, and seeking in all that he did to defeat them and overthrow their petition, he should still, for the purpose of sharing in the fee which the statute allows to their attorneys, be held to be one of their attorneys 'in the proceeding. The relation of attorney and client rests upon contract of employment, and these petitioning creditors never employed the appellant. , In litigation, .counsel often receive valuable suggestions from opposing counsel, which, as in this case, were not •intended, when given, to be helpful; and they do not, because of ■such suggestions, feel bound to share their fees with such opposing counsel.

The order and judgment are affirmed.