101 F. 805 | D. Ky. | 1900
Tbe questions raised upon tbe petition of J. H. Mersman, trustee, for a review of the rulings of the referee on the claim of Sidney G-. Strieker, an attorney, to a lien upon tbe avails of the claim of J. L. Board, doing business as G-. A. Crosby & Co., a preferred creditor herein, and which the attorney has prosecuted to a successful result in these proceedings, are: First. Has this court jurisdiction in these proceedings to adjudicate and determine the right of the attorney to a lien upon the claim he prosecuted? Second. Was the refusal of the referee to have a jury pass upon the amount of the attorney’s claim proper? Third. Has the attorney a lien in this instance of such a nature as to force the trustee to satisfy it, notwithstanding he has distributed the fund, such distribution having been made .by him without the order of the referee or of the court? And, fourth, was the amount adjudged to the attorney by the referee excessive?
1. In order to settle and distribute a bankrupt’s estate, all questions necessary to the ascertainment of the amount to be paid to each party to the proceedings must be adjudicated and determined by this court. We think this fairly includes matters like the one before us as- necessary incidents. The assets of the bankrupt’s estate were within the control of the court, and must be distributed under its orders. The distribution must extend to the entire estate. In fixing the amount to be paid to a creditor in such distribution, it would manifestly be unjust for the court to ignore the claim of his attorney to a lien upon that amount for services rendered by him in the case, and thus arbitrarily defeat the attorney’s lien, however meritorious and valuable his services might have b.een in the effort to collect his client’s claim through the bankruptcy proceedings. That there is a lien in favor of the attorney, and that it may be enforced in this court, seems to admit of no doubt. Cowley v. Railroad Co., 159 U. S. 575, 16 Sup. Ct. 127, 40 L. Ed. 263; Railroad Co. v. Pettus, 113 U. S. 127, 5 Sup. Ct. 387, 28 L. Ed. 915; section 107, Ky. St.; and 3 Am. & Eng. Enc. Law (2d Ed.) 447-452.
2. Bankruptcy proceedings are equitable in character, and while the court, or, possibly, the. referee, might have had a jury to pass upon the amount of the attorney’s fee, that was a matter of discretion, and
3. The trustee made the distribution in this case without any order or judgment as a basis for it, and this action of bis cannot defeat the rights of the attorney if they otherwise! existed. There was no legal warrant for the distribution, and the trustee, when making it, took the chances of disapproval in whole or in part. The fund must be regarded as still in the bands of (he trustee, and under the control of the court, to be paid out according to its order.
4. But the court is clearly of opinion that the amount of the fee, as fixed by the referee, is too large. There was no express contract between the attorney and his client for any fee, either certain or contingent. The attorney, therefore, upon the implied contract is only entitled to a just and reasonable compensation. The court is of opinion that $1,500, exclusive of the retainer of $250, already paid, would be a fair and just compensation for the services of the attorney. The client appears to have been perfectly solvent, so that there was no element of uncertainty about the payment of a proper compensation to the attorney. If the latter devoted himself and all his labors exclusively to this work for 35 full days, or their equivalent in fractions of days, the fee now fixed, including bis retainer, would be $50 per day on a demand for $7,300. We do not find (hat he worked so much as this, but, giving Mm the benefit of a liberal construction of the evidence, we think the sum allowed is ample compensation, particularly as the testimony shows that he was paid by another for a material part of the labors he describes in his deposition. The referee will therefore reduce the amount adjudged to the attorney from $2,500 to $1,590. As thus modified, the rulings of the referee are approved and confirmed.