241 F. 330 | 6th Cir. | 1917
In a creditors’ suit in a state court of Ohio a receivership was ordered over the property of the Ohio Motor Car Company, and a receiver put in possession of its assets. Eater involuntary proceedings in bankruptcy were instituted in the court below against the Motor Car Company, and upon petition of certain intervening creditors the company was adjudicated bankrupt, and three trustees were appointed. No receiver was appointed or asked for in the bankruptcy cause, nor was there any seizure of the property of the alleged bankrupt therein, the state court having largely administered the estate. This court reversed the order adjudicating bankruptcy, holding the intervening creditors estopped to maintain bankruptcy proceedings by reason of their acquiescence in the state court receivership and the acceptance of dividends thereunder, and accordingly directed the dismissal of the bankruptcy proceedings. Ohio Motor Car Co. v. Eiseman Magneto Co., 230 Fed. 370, 144 C. C. A. 512. In pursuance of the mandate, the District Court made such order of dismissal, assessing against petitioning creditors certain costs of the proceedings below, as well as the costs of this court. At the same time it ordered the return to the receiver appointed by the state court of all the debtor’s assets in the hands of the trustees in bankruptcy (the receiver having turned over to the bankruptcy trustees all assets remaining in his hands), less certain disbursements of such trustees made for the preservation of the fund. In the same connection, the
The trustees and their counsel are not represented here. Counsel for the Motor Car Company and the -state court receiver respectively filed brief and! participated in the argument.
Petitioners distinctly challenge the authority of the District Court to award against them the compensation items in question. It scarcely need be said that such authority must be looked for entirely outside the mandate o:f this court; the order for costs therein related only to the costs of this court.
Does the compensation of the trustee in bankruptcy and of the latter’s counsel occupy a better position?
Treating these compensation items merely as costs of suit, they manifestly are not taxable under General Order No. 34, for the alleged bankrupt did not contract for the services in question, but, on the contrary, opposed the trusteeship, and thus the rendering of the services involved, and is not presumably obligated personally for their payment.
There have been, however, several decisions sustaining the power of the District Court to assess not only against the fund, but as against petitioning creditors the expenses of a receivership, including the fees and disbursements of the receiver. In re T. E. Hill Co. (C. C. A. 7) 159 Fed. 73, 76, 86 C. C. A. 263; In re Lacov (C. C. A. 2) 142 Fed. 960, 74 C. C. A. 130; In re Aschenbach Co. (C. C. A. 2) 183 Fed. 305, 105 C. C. A. 517; Beach v. Macon Grocery Co. (C. C. A. 5) 125 Fed. 513, 60 C. C. A. 557. Indeed, where the property is restored to the bankrupt, such fees and disbursements being a lien thereon would naturally be included in “expenses and damages,” under section 3e of the Bankruptcy Act.
It seems, moreover, to be the rule that in receiverships in courts of equity, as distinguished from courts of bankruptcy, the creditors responsible for the unauthorized receivership may, in a proper case, be held liable for the expenses and costs incurred, including the fees and expenditures of the receiver, and apparently in recognition of the inherent power in the court of equity to make such disposition. Richmond v. Irons, 121 U. S. 27, 64, 7 Sup. Ct. 788, 30 L. Ed. 864; Couper v. Shirley (C. C. A. 9) 75 Fed. 168, 171, 21 C. C. A. 288; Chicago Title, etc., Co. v. Newman (C. C. A. 7) 187 Fed. 573, 577, 109 C. C. A. 263.
In the instant case the alleged bankrupt, being a corporation, may or may not have sustained actual damage by reason of the liability of the fund for the compensation of the trustees and their counsel; the fund has been ordered returned to the receiver appointed by the state court, and presumably has been so returned for purposes of distribution among creditors.
By our reference to fraud, bad faith, or malice on the part of petitioning creditors — in connection with the inference that such a case-will not be concluded by this opinion — we do not intend' to include such conduct on their part as here appeared and as was considered in our former opinion. 230 Fed. 370, 144 C. C. A. 512. The petitioning creditors here were held personally estopped by conduct which was in a sense in bad faith toward other creditors; but the alleged bankrupt was all the time confessedly subject to adjudication upon proper complaint, the petitioning creditors acted under a view of their legal rights which view the District Court approved, and they did not proceed upon false allegations, or otherwise attempt to deceive that court.
It follows, from what we have said, that so much of the order of the District Court as directed the payment by petitioners of the compensation of the trustees and their counsel must be reversed. The reversal, however, will be without prejudice to such further or other proceedings, if any, in the premises as the parties in interest may be entitled to.
In re Ghiglione (D. C.) 93 Fed. 186; In re Williams (D. C.) 120 Fed. 34; Selkregg v. Hamilton (D. C.) 144 Fed. 557, 559; In re Ward (D. C.). 203 Fed. 769, 772, et seq.; In re Wise, 212 Fed. 567; In re McKenzie (D. C.) 219 Fed. 630.
In re Ghiglione, supra: In re Morris (D. C.) 115 Fed. 591 (opinion by Judge McPherson); In re Williams (D. C.) 120 Fed. 34, 37 (opinion by Judge Trieber); In re Hines (D. C.) 144 Fed. 147 (opinion by Judge Wolverton).
Judge Morton, while finding it unnecessary to decide whether the bankruptcy court had power to tax counsel i'ees in excess of those regularly following the dismissal of a petition, declined to make such taxation because in his opinion the question could “be more properly raised by an action for malicious prosecution of the bankruptcy petition.” In re Shon (D. C.) 212 Fed. 797.