Wessinger v. Sturkie

• Citation: 77 F.2d 751
• Decision Date: 03 June 1935
• Docket Number: No. 3846.,3846.
• Parties: WESSINGER, County Treasurer, et al. v. STURKIE et al. KRUPNICK v. PEOPLES STATE BANK OF SOUTH CAROLINA et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

77 F.2d 751 (1935)

WESSINGER, County Treasurer, et al. v. STURKIE et al.

KRUPNICK v. PEOPLES STATE BANK OF SOUTH CAROLINA et al.

No. 3846.

Circuit Court of Appeals, Fourth Circuit.

June 3, 1935.

George Bell Timmerman and R. Milo Smith, both of Lexington, S. C., for appellants.

D. W. Robinson, Jr., of Columbia, S. C. (Robinson & Robinson, of Columbia, S. C., on the brief), for appellees.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an appeal from two orders entered in the District Court of the United States for the Eastern District of South Carolina, on March 5, 1934, and November 7, 1934, allowing the appellees certain attorneys' fees.

In 1932, in the suit of Krupnick v. Peoples State Bank et al., in equity, the court below had appointed receivers for said bank, and since that time two of the receivers so appointed have been engaged in the administration of the affairs of the bank in accordance with the order of the court. Prior to the closing of the bank and in the due course of business, the bank had become the owner and holder of certain notes of Cherokee county, S. C. These notes were, in October, 1931, pledged to the treasurer of Lexington county, S. C., as security for deposits of that county in said bank. The securities thus pledged were delivered to the trust department of the Peoples State Bank under a contract setting forth the securities held and binding the bank to hold them as security for the deposit until released from the trust by the treasurer of Lexington county. In June, 1932, after the closing of the bank and the appointment of the receivers, the treasurer of Cherokee county filed a petition in the cause in which the receivers had been appointed, setting up the alleged right of Cherokee county to set off the amount of its deposit in the said bank against its obligations held by the bank but pledged to secure the deposit of Lexington county.

The treasurer of Lexington county and that county were represented by the appellees as attorneys. A petition was filed setting up the pledging of the securities to secure the deposit of Lexington county. The receivers also made returns to the petition of the treasurer of Cherokee county and that county. After a hearing the judge below dismissed the petition of Cherokee county and its treasurer and authorized the sale of the pledged securities for the benefit of Lexington county. The judge held that the pledge to secure the deposit of Lexington county was a valid one and that neither Cherokee county nor the receivers of the bank were entitled to the securities pledged.

In March, 1934, the appellees filed an ex parte petition praying the court to fix their fees in defending the claim of Lexington county, and asked that the court direct the treasurer of that county to pay the sum fixed by the court as compensation. On March 5, 1934, a summary order was issued by the judge granting the prayer of the petition and ordering the treasurer of Lexington county to forthwith pay out of funds in her hands the sum of $2,500 to the appellees as fees in the litigation. On March 9, 1934, the judge entered an order suspending the order of March 5, pending a hearing of the matter, and fixing a date when the appellants should appear and present such matters as they wished to present with regard to the fees.

At the hearing the appellants filed a response, setting up, among other things, that they had never been served with notice of the petition; that neither the appellants nor the appellees were nonresidents of the state of South Carolina; that a summary proceeding could not be maintained against them for judgment for the fees in question; that a summary judgment could not be legally entered against them in the manner attempted; that the only proceeding that appellees could maintain against them would be one in the nature of an action of debt or assumpsit; that if appellees had any right of action against appellants it was one at law, upon the hearing of which appellants would be entitled to a jury trial; that the court did not have the power to fix the fees or issue the order prayed for and was without jurisdiction of this particular matter; and that appellees had an adequate remedy for the collection of their fees at law, the cause in which the petition was filed being a suit in equity, the court, therefore, was without jurisdiction. Later, on November 7, 1934, the judge entered a final decree giving the appellees judgment against the appellants in the sum of $2,000, and directed the treasurer of Lexington county to forthwith pay said sum to the appellees. From this order this appeal was brought.

The only question involved is whether the court below had jurisdiction of the matter in controversy and authority to fix the fee of appellees as attorneys and order the payment of the fee so fixed.

That under certain circumstances attorneys, who are officers of the court, will be protected by the court in the collection of their fees is not to be doubted. This is ordinarily done on the theory that...