Little v. St. Louis Trust Co.

146 Mo. App. 580 | Mo. Ct. App. | 1910

Lead Opinion

GOODE, J.

(after stating the facts). — As already said, the position of the Bank of Commerce as appellant in this branch of the case, raises only one question: Whether the circuit court had power, after the term in which the judgment was given for an interpleading, to make an order for an allowance in the trust company’s mvor of its reasonable expenses and attorneys’ fee. This question is to be determined with reference to several prominent facts. The decree for an interpleading did not, it will be observed, dismiss i he trust company as a party to the proceeding, though it is the defendant and is adjudged to be discharged from all liability to the plaintiffs and other parties to the suit in respect of. the fund in controversy. It will be observed, too, the decree contained an order for the allowance to the trust company of a reasonable attorneys’ fee and its other costs incurred in the proceeding and the payment of the allowance out of the fund in the hands of the clerk. And still further it is to be observed the decree, instead of fixing the counsel fee, expressly reserved that matter for future determination in this clause: “said fee to be hereafter fixed and ordered by the court.” The party which appealed from the decree before the amount had been fixed was not the trust company, but the Bank of Commerce. The remedy by bill of interpleader is, as was said by the Supreme Court in the present case, a creation of the chancery courts, and in this State of blended common law and equity jurisdiction, it is administered upon principles of equity and in some measure, at least, according to chancery procedure. The theory of the chancery courts is that a disinterested stakeholder of a fund or property who is threatened by rival claimants with actions regarding it, is not at fault in any way, and should be allowed to protect himself against two or more harassing litigations by filing a bill of interpleader, or a cross-bill of that kind if action is begun by one of the claimants before he files the bill. Occupying, as the stakeholder does, the position of a party who is not resisting any person’s right in the property or fund, but is only endeavoring to ascertain who has the right, the chancery courts have always remunerated him for reasonable expenses and counsel fees incurred in the proceeding for an interpleading; which allowance is paid out of the fund in controversy and ultimately adjudged against the wrongful claimant. [Maclennon, Interpleader, p. 286 and citations.] This rule of chancery is followed by the Missouri courts. [Glaser v. Priest, 29 Mo. App. 1; Franco v. Joy, 56 Mo. App. 433.] That it is the law is not questioned by appellant, the contention being the trust company lost the right to have expenses and counsel fees allowed in consequence of the circuit court failing to fix and ascertain the amount'of them in its decree for an interpleading. Counsel for appellant cite an array of cases in support of this proposition. [State ex rel. v. Railroad, 176 Mo. 443, 75 S. W. 636; Berberet v. Berberet, 136 Mo. 671, 38 S. W. 551; Jackson v. Railroad, 89 Mo. 104, 1 S. W. 224; State ex rel. v. Railroad, 78 Mo. 575; Ladd v. Cousins, 52 Mo. 454; Dulle v. Diemler, 28 Mo. 583; Wilson & Co. v. Stark, 47 Mo. App. 116; Boseley v. Parle, 35 Mo. App. 232; Mann v. Warner, 22 Mo. App. 577.] The effect of those precedents, most or all of which were given in proceedings at law, is that, costs which are specifically prescribed by a statute may be retaxed on a motion filed after tbe term in which final judgment is rendered, if said judgment included the costs and they were not taxed or were erroneously taxed at the term of the judgment; but if the item of costs asked to be taxed or retaxed at a subsequent term is of a nature to require judicial ascertainment, and is not arbitrarily prescribed by law, then the court has no power to tax or retax it at a later term, because this would be to modify the final judgment in the cause; which cannot be done at a subsequent term if no motion or other proceeding has carried the matter over. There is another line of cases involving matters originally of equity cognizance, which support the proposition that expenses and allowances of the kind in controversy here may be allowed at a term after final judgment, or, at any rate, after a judgment final in the sense the one before us is; for it must be remembered the proceeding was still in court and the judgment already given, if final at all, was only so as regards the trust company' and its right to invoke the remedy of interpleader. [Clark v. Hill, 33 Mo. App. 116; Turner v. Butler, 66 Mo. App. 380; Assignment of Gregg, 74 Mo. App. 58; State ex rel. Gray v. Loan Assn., 102 Mo. App. 675, 77 S. W. 171; Schawacker v. McLaughlin, 139 Mo. 333; Padgett v. Smith, 207 Mo. 235, 105 S. W. 742.] In several of those cases the qestion was adjudged of the right to tax a referee’s fees, which must be fixed by the court, after the term final judgment was given in the cause; in others the question of the power to allow an attorney’s fee in a partition suit or a receivership case, and only one related to allowing costs to a party who had filed a bill of interpleader (Assignment of Gregg). Still the principle regulating the allowance in the different cases must be the same, for they all involved an order at a term after judgment for costs which were not fixed by law, but required ascertainment by the court. The most recent decision in point is Padgett v. Smith, which is conceded to be against the bank’s position in the present ease, but said to conflict with prior decisions of the Supreme Court not expressly overruled by it. Wherefore it is argued those should be followed instead of it. From the statement and opinion we learn Padgett had instituted a suit against Smith, to establish a resulting trust in certain lands held by the latter and for partition of the lands. The.plaintiff prevailed in the trial court where a fee was allowed his attorneys. Tha defendant appealed to the Supreme Court and there the plaintiff’s attorney filed briefs in support of the judgment, which was affirmed. Afterwards those attorneys presented a motion to be allowed a fee for services rendered in the Supreme Court, asserting the trial court had lost jurisdiction over the cause by the defendant’s appeal, and that when the judgment was entered in said court it could not have been foreseen an appeal would be taken, and even if it could have been, the reasonable value of the additional fee for services in connéction with the appeal could not have been estimated. On this' state of facts the Supreme Court refused to order an allowance for a fee to compensate for services rendered in said court, and held the application should be made to the circuit court, which would have jurisdiction to hear evidence about the nature and extent of the services of the attorneys, and their reasonable value, and power to allow the proper amount as costs in plaintiff’s behalf. An order was entered dismissing the application, without prejudice to the right of plaintiff to apply in the circuit court. We regard that authority as controlling the case at bar, and cannot think of disregarding it. This proceeding calls even more cogently for a like ruling; because the case never has been finally determined; as even the decree for an interpleading did not dismiss the trust company from the case, and moreover, expressly reserved the right to ascertain and fix the amount of the attorneys’ fee which was allowed in general terms in favor of the trust company, Jf we did not have the express authority of Padgett v. Smith,' we think there could he no doubt about our duty in the premises. It is said the reservation only reserved the power to fix the fee thereafter during the term; but as the bank appealed, the trust company would be entitled to a fee for services on the appeal, if not defeated, and these could not be estimated in advance, because the work which would be required could not be known. The appeal might be dismissed, or it might be prosecuted. The more reasonable interpretation of the decree is that it reserved the power to fix the trust company’s fees whenever they could be ascertained. However, under Padgett v. Smith, which is in accord with Fritz v. Hobson, 14 Ch. Div. 542, the court had power to do this without a reservation.

It is worth while to remark that if the reservation was deemed erroneous, it could have been attacked in the Supreme Court and a decision taken upon its meaning and effect. If that court thought the circuit court had exceeded its power, it could have reversed or modified the decree; perhaps would have ordered the circuit court to ascertain and fix the fee, as was done in Kendall v. Marsters, 2 DeG. F. & J. 200. In the'case last cited, the chancellor altered on the appeal, the judgment given by the vice-chancellor, because it contained only permission for the parties to apply to the court as they should be advised, and it was thought this reservation would not permit an application by the plaintiff for an allowance of costs. The chancellor took for granted that if such a reservation had . been inserted in the decree, costs might have been allowed after the decree had been passed, and, therefore, altered the decree by inserting it. It seems to be the chancery practice in England to make orders allowing costs and expenses of different kinds, after a decree has been passed in gross, and even when the power to do so is not reserved. [2 Dan., Ch. Prac. (6 Am. Ed.), *p. 993 et seq.; Fritz v. Hobson, 14 Ch. Div. 542; see, too, Forgay v. Conrad, 6 How. 203.] And the reservation in the decree of power to do this is regarded by said courts as not rendering the decree an interlocutory one, or preventing it from being final in the sense that an appeal may be taken from it. In Forgay v. Conrad, supra, the decree appealed from was one adjudging certain deeds fraudulent and void and directing money to be paid over to the complainant, but directing the master to take an account of the profits of the property ordered delivered from the time of the filing of the bill until it was delivered and of money and notes received by the defendant in fraud of creditors. Notwithstanding this reservation the decree was held to be final in the sense an appeal would lie from it as it decided the right of the property in contest. In the present case the Supreme Court entertained the appeal and must be taken, for the purposes of the proceeding, to have held the judgment was final in the sense that an appeal would lie from it. But if final for all purposes, according to the doctrine of Padgett v. Smith, and the rule of chancery generally, and especially in view of the reservation in the decree, the circuit court had power to tax this allowance at a subsequent term.

The judgment is affirmed.

Nortoni, J., concurs; Reynolds, P. J., dissents.

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Dissenting Opinion

DISSENTING OPINION.

REYNOLDS, P. J.

I am compelled to dissent from the conclusion arrived at in this case by my very learned associates. As will be noticed by the very clear statement of facts by my brother Goode, the sole question in the case is whether the circuit court had jurisdiction, after the affirmance of its judgment by the. Supreme Court, the Supreme Court neither reversing nor modifying the judgment nor remanding the cause, to enter up any other or further orders or assume any further jurisdiction in the case. Whatever may be said of the form of the judgment on which the appeal was taken to the Supreme Court, it must be held that it was a final judgment. It was so treated by all the parties in the case, was accepted and acted on as such by the Supreme Court and was affirmed by that court. That the circuit court when the cause was within its jurisdiction did not dispose of the question of costs in the case by allowing and taxing fees for the attorneys for the trust company did not render the judgment in the cause any less a final judgment. When the appeal was prayed for and granted and perfected, the circuit court lost all jurisdiction of the cause. I have always thought this elementary law in our State. The reservation in the decree of a right to tax costs thereafter, in my opinion and on an almost unbroken line of authority, was a matter beyond the power and jurisdiction of the court. [City of St. Louis v. Crow, 171 Mo. 272, l. c. 280, 281, 71 S. W. 132.] No court can in one breath dispossess itself of jurisdiction, as by allowing an appeal, and in another retain jurisdiction for' any purposes. The attempt to engraft onto our practice a rule which in effect is to say, “once in court, always in court,” is to my mind contrary to the spirit of our age and the practice of the courts. I think that the opinions of our Supreme Court in St. Louis v. Crow, 171 Mo. 272, 71 S. W. 132, and State ex rel. O’Briant v. K. & W. Rv. Co., 176 Mo. 443, 75 S. W. 636, are controlling and settle the propositions here put forward. It is true that in the case of Padgett v. Smith, 207 Mo. 235, 105 S. W. 742, the Supreme Court, in an opinion per curiam held that the circuit court that tried the cause had jurisdiction to hear evidence as to the nature and extent of the services and their reasonable value and to make a proper allowance therefor, to be taxed as costs after its judgment had been affirmed by the Supreme Court, but I find nothing in this later case to show that the question was presented to the court and adjudicated byit asto whetheror notthe jurisdiction still remained in the circuit court. It does not. appear that counsel were heard or that there was any opposition to the motion or that the prior adjudications of the court on the matter were in any way called to the attention of the court, und while it is true the Padgett case is the last decision of the Supreme Court on the subject, I cannot think that it is the controlling one. [M., K. & T. Ry. Co. v. Smith, 154 Mo. 800, 55 S. W. 470.] On the contrary I think that the last controlling decision where the matter was directly before the court is State ex rel. v. K. & W. Ry. Co., 176 Mo. 443, 75 S. W. 636. I do not wish to be understood as holding that a decision of the court rendered in a matter in which counsel has not been heard is not binding and authoritative. What I do mean is, that it lends some color to the claim that the court itself did not have in mind and so did not intend to overrule other decisions. N'or do I think •that because the trust company cannot come in by motion in a case which is no longer before the court and recover fees for services rendered in that case, that it is entirely shut out from obtaining compensation for those services. I see no reason why action should not lie directly for the recovery of those services against the parties liable for them. My position here is, that they cannot do that by motion in a cause which is no longer in court, cannot do it in a court which has lost jurisdiction of the cause in which the motion is made. Being very clearly of the opinion that the conclusion arrived at by my learned associates is in conflict with the last controlling decision of the Supreme Court above referred to on this matter, I am compelled to ask that the cause be certified for determination to the Supreme Court.