12 Ohio C.C. 128 | Oh. Circ. Ct. | 1896
We state our conclusions in this case very briefly:
1st. We are of the opinion that the judgment rendered by the Superior Court of Cincinnati, and afterwards affirmed by the Supreme Court, in the case prosecuted by Mr. Kittredge against Miller & Tafel, assignees, to recover his claim against said trust estate for the same compensation, which is now sought to be collected in this proceeding instituted in the Probate Court, and which judgment was pleaded in bar of this action, was not a bar thereto — and for the reasons, 1st. that such action was not decided upon the merits, the question having arisen upon a demurrer to the petition, which was sustained upon the ground that it did not contain any allegation that the plaintiff was entitled to compensation for securing a fund for the benefit of the trust estate, and that it had been realized — the fact being that at the time of the commencement of the suit, and when the judgment was rendered, the case in which the services were rendered, was still pending and undisposed of, and no money as the result of the action had been collected by the assignees; and 2nd, for the additional reason that the Superior Court had not jurisdiction to hear and adjudicate the question whether an attorney employed by an assignee of an insolvent estate to transact business in the settlement of said trust, is entitled to be paid from the trust funds a compensation therefor, and fix the amount thereof, and render a judgment or decree that such amount be paid by the assignee from said trust fund. Rev.Stat. section 524,provides that “The Probate Court shall
2nd. It is urged by the counsel for the trustees, that as the action in the Superior Court, or this proceeding in the Probate Court, was not commenced within thirty days after the rejection of his claim by the trustees, that he is forever barred from prosecuting any proceeding for the allowance or recovery of such claim under the provisions of Sec. 6352, Rev. Stat. We are of the opinion that this claim is not well founded. In the first place, we incline strongly to the opinion that this section provides for the presentation of claims which existed against the assignor, and not those
3rd. Nor do we think that the right of Mr. Kittredge to begin and maintain this proceeding in the Probate Court, was barred by the general statute of limitations of six years. The action in the Superior Court was commenced in due time. It was sustantially the same cause of action as this one — viz., to obtain from this estate the same compensation for the same services. In it the plaintiff failed otherwise than upon the merits, and this proceeding was commenced within one year from the final determination of the other case.
4th. It seems clear to us that our statutes in relation to the settlement of insolvent estates authorize the assignee to employ counsel to aid and assist him in the proper administration of the trust and of the duties which the law imposes upon him, and that when such employment is made, under an arrangement that the counsel is to be paid from the trust fund, that he thereby becomes entitled to receive therefrom such reasonable compensation as the Probate Court (in the first instance) may find right. Rev. Stat.6357 recognizes the right of the assignee to employ counsel, when
And as we have said, the assignee making the employment, •or his successor in the trust, cannot, in our opinion, by his mere refusal to do this, cut off all right of the attorney to a payment of a fair compensation for his services. If the original assignee who employed the counsel, or his successor in the trust,disputes the employment, or the amount of compensation therefor, the matter should be submitted to the court, and if the proof shows that the attorney is entitled to be paid if there be funds to pay it, we think the court has full power to do this, and in our judgment, on the facts as found by the court in the finding of facts, such an order ought to have been made in this case for the whole claim, of Mr. Kittredge, and will now be made.
5th. We think that the motion to strike this petition in error from the files is not well taken. It is claimed by the counsel for defendant in error that under our statutes, particularly under section 6407, which allows an appeal from the decision of the Probate Court in a case of this kind, that is the only way in which the plaintiff in error could reverse this judgment of the Probate Court, and that he did not appeal, but prosecuted error to the Court of Common Pleas. But Sec. 6708 expressly provides that a judgment rendered or final order made by the Probate Court may be reversed, vacated or modified by the Court of Common Pleas, and this warranted the filing in the Court of Common Pleas of a petition in error to reverse the judgment of the Probate Court.
6th. It is further claimed that the Probate Court was not warranted in making a finding of facts separately from its conclusions of law, under Sec. 5205, Rev, Stat. But Sec. 6411 makes the provisions of law governing civil proceedings in the Court of Common Pleas, in so far as they ■are applicable govern like proceedings in the Probate Court