In re State Bank

57 Minn. 361 | Minn. | 1894

Mitchell, J.

The short facts are that on June 27th the State Bank of IMinneaxiolis, being insolvent, made an assignment for the benefit of its creditors to one Fletcher, a stockholder and director of the bank, and a debtor to it in the sum of over $5,000, of which $1,500 was overdue. Fletcher entered upon the duties of his office, as assignee, June 30th. On August 12th he resigned, and on August 17th the court made an order appointing his successor, and requiring him to deliver over to such successor all property or money of the bank in his hands. At this time, Fletcher had in his hands $8,643.14, of which over $6,200 was practically money which the bank had on hand at the time of the assignment. The remainder was money which Fletcher had collected by his own exertions. On August 22d, Fletcher paid over to his successor $5,000, and no more. On or about August 24th, he filed his report, in which he claimed for his services and disbursements, during the month and a half he had acted as assignee, the sum of $3,431.38. A large number of the creditors of the bank objected to the allowance of any part of the account, for the reason, among others, that he was in contempt of court, in not obeying its order to pay over to his successor all the money in his hands. They also objected to numerous-items of the account, either as unreasonable in amount, or as not being proper disbursements.

Judge Hicks, who held the special term, designated Judge Pond as to the judge to hear the matter. Judge Pond refused to hear it unless Judge Hicks would sit with him. The two judges sat together on the hearing; Judge Hicks, the senior in office, presiding,, and rendering the decision, and making the order of the court. Judge Pond filed a memorandum opinion dissenting from some of the views of Judge Hicks, but made no order. The order filed by Judge Hicks required Fletcher to pay over to his successor the full balance of $3,643.14 remaining in his hands; refused to allow any of his account, unconditionally, because he had failed to obey the original order of the court, but provisionally allowed such part of it as the court found reasonable and just, to wit, $1,238.96, in -case he first paid over the moneys in his hands to his successor. The order further provided that the amount thus allowed should be applied on Fletcher’s indebtedness to the bank. Although this part of the order is assigned as error, yet, not being included in the points- and authorities relied on, it will be deemed waived.

1. Waiving the question of its appealability, we are of the opinion that the order filed by Judge Hicks was the order of the court.

It is immaterial that the matter was originally assigned to Judge-Pond for hearing. The fact was that it was heard by the two judges together, and, if there was any division of opinion, the opinion of the presiding judge (the senior in office) would be the opinion of the court. Laws 1881 (Ex. Sess.) ch. 84, § 3; Laws 1889, ch. 152, § 1. If his order is not the order of the court, then there is nothing to appeal from, because Judge Pond never made any order.

2. The court had a right to insist that Fletcher should first obey its previous order to pay over all the money in his hands to his successor, before it would allow his claim for services and disbursements. As well said by the learned judge, it is all wrong for an assignee to retain out of its assets what he claims to be due him, after he has been ordered to pay over all that is in his hands, and before his account for fees has been passed upon by the court. His place was to pay over everything to his successor, as ordered, and then present his account to the court tor allowance and payment.

3. It is impracticable to go in detail over the different items in the account disallowed in whole or in part. We have examined them, and fail to find any error in the action of the court. The evidence, which was in the form of affidavits, was conflicting. Moreover, the correctness of the conclusions of the court as to the allowance of the assignee’s account is not to be determined, as in ordinary cases, exclusively upon the evidence formally introduced on the hearing. The court in which the proceedings were pending has personal knowledge of much that has been done by the assignee, and of the general nature and extent of his service; and this knowledge, we think, he may rightfully use, in determining what would be a fair compensation. A bill of over $3,400 for services and disbursements for less than a month and a half seems, in the light of áll that appears to have been done, a very extravagant one. The court was justified in pruning it down very materially, and, upon the whole, we do not think any injustice has been done to appellant.

Order affirmed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 315.)