Carlisle, Brown & Carlisle v. Carolina Scenic Stages

• Decision Date: 07 March 1957
• Docket Number: No. 7358.,7358.
• Citation: 242 F.2d 259
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: CARLISLE, BROWN & CARLISLE, Attorneys at Law, Petitioning Claimants, Appellants. v. CAROLINA SCENIC STAGES, Respondent, Appellee. In the Matter of CAROLINA SCENIC STAGES, Debtor.

242 F.2d 259 (1957)

CARLISLE, BROWN & CARLISLE, Attorneys at Law, Petitioning Claimants, Appellants. v. CAROLINA SCENIC STAGES, Respondent, Appellee.

In the Matter of CAROLINA SCENIC STAGES, Debtor.

No. 7358.

United States Court of Appeals Fourth Circuit.

Argued January 25, 1957.

Decided March 7, 1957.

Howard Carlisle Bean, Spartanburg, S. C. (Carlisle, Brown & Carlisle, Spartanburg, S. C., on the brief), for appellants.

Thomas A. Wofford, Greenville, S. C. (J. Nat Hamrick, Rutherfordton, N. C., on the brief), for appellee.

Before PARKER, Chief Judge, SOBELOFF, Circuit Judge, and GILLIAM, District Judge.

GILLIAM, District Judge.

This appeal was taken by petitioners from an order of the District Judge, which disallowed their claim for a fee of $2,500. The claim was filed in a Chapter 10 Proceeding in Bankruptcy, 11 U.S.C.A. § 501 et seq., and, it is alleged, covers services performed while the case was being handled by a State Court Receiver prior to the institution of proceedings in bankruptcy, which services, it is also alleged, benefited all the creditors of the defendant, Carolina Scenic Stages.

It should be noted at the outset that the matter was one within the sound judicial discretion of the trial Court and under the cases its decree should not be set aside unless it appears that there was an abuse of that discretion. This Court had the question before it in the somewhat similar case of Jett v. Merchants and Planters Bank, 228 F.2d 156. It is stated in the opinion at page 158:

"This was a matter within the sound judicial discretion of the trial court." And at page 159: "Since we think there was no abuse of discretion on the part of the District Court in proctor\'s petition for a fee, the decree of the District Court is affirmed."

To properly focus the question of whether the District Court abused its discretion we must look to the course of the litigation which began in a South Carolina State Court, was then transferred to the jurisdiction of the United States Court under a Chapter 11 Proceeding in Bankruptcy, 11 U.S.C.A. § 701 et seq., then returned to the State's jurisdiction, and finally came back to the jurisdiction of the United States Court by way of a Chapter 10 Proceeding in Bankruptcy. This narration of the course of the litigation leading to the filing of the claim for the fee is found in appellants' brief:

"After the Debtor, Carolina Scenic Stages, had been in the custody and control of the Court of Common Pleas of South Carolina, through its duly appointed and acting Receiver for a period of about twenty months, the Debtor without notice filed a petition under Ch. 11, Title 11, U.S.C.A., seeking an arrangement with its creditors and further seeking an order requiring the Receiver of the State Court to turn over to the Debtor the assets held by said Receiver pursuant to orders of the Court of Common Pleas. The petition was filed in the office of the Clerk of the United States District Court for the Western District of South Carolina on May 22, 1953. On the same day, Judge C. C. Wyche approved the petition of the Debtor and, among other things, ordered the State Court Receiver to turn over to the Debtor all of the property of the Debtor without requiring bond for the protection of the creditors.

"Appellants, who represented several of the creditors of Debtor, filed an appeal from the turnover order and moved before Honorable George Bell Timmerman, Judge Wyche having disqualified himself from further action and consideration of the matter, for an order of supersedeas staying the order of Judge Wyche pending an appeal to this Court. The motion was argued May 29, 1953, resulting in an order dated June 4, 1953, dismissing the petition for an order of supersedeas. Prior to the argument on the motion just above referred to, appellants, representing the B. F. Goodrich Company, a creditor of the Debtor, served notice of appeal from the order of Judge Wyche of May 22, 1953, to this Court. Such Notice of Appeal was filed in the office of the Clerk of the United States District Court for the Western District of South Carolina on May 27, 1953.

"Thereafter, on May 27, 1953, the State Court Receiver noticed a motion to vacate the order of May 22, 1953. The motion was heard by Judge Timmerman who overruled it by an order filed May 29, 1953, from which the Receiver appealed in due course.

"Pending the appeal by B. F. Goodrich Company to this Court, appellants moved before the Honorable John J. Parker, Chief Judge of this Court, for an order of supersedeas and stay of proceedings pending the hearing of the appeal. The application for supersedeas was denied conditioned upon a good and sufficient bond in the penal sum of $30,000. being filed by Debtor in the District Court. After the disapproval of the first bond offered on motion of appellants, a second bond of $30,000. cash was filed and approved. Judge Parker also ordered that the appeal of appellants\' client and that of the State Court Receiver (from the overruling of the motion to vacate the turnover provisions of the May 22, 1953 order of Judge Wyche) be consolidated and heard together at the October, 1953 term of this Court.

"The appeal was heard October 5, 1953, and resulted in a decision of this Court which held that since the State receivership had been in operation for more than four months, Debtor was precluded from filing a petition under Chapter 11, Title 11, U.S.C.A., Stevens v. Carolina Scenic Stages, 208 F.2d 332, certiorari. denied. 347 U.S. 917, 74 S.Ct. 515 98 L.Ed. 1072. Prior to the denial by the Supreme Court of the petition for writ of certiorari, appellants were informed that one of their clients, The B. F. Goodrich Company, had sold and assigned its claim and was no longer interested in the outcome of the litigation.

Nevertheless, appellants continued as attorneys of record until the order of the Supreme Court

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