Amos v. Burwell & Sibley

• Decision Date: 24 August 1932
• Citation: 143 So. 607,106 Fla. 550
• Court: Florida Supreme Court
• Parties: AMOS et al. v. BURWELL & SIBLEY.

143 So. 607

106 Fla. 550

AMOS et al. v. BURWELL & SIBLEY.

Florida Supreme Court

August 24, 1932

Suit by Will Allen for appointment of a receiver for the Guardian Trust Company, in which Ernest Amos, as Comptroller of the State, intervened, and Burwell & Sibley, a copartnership composed of W. H. Burwell and Marion E. Sibley, filed an application for allowance of attorneys' fees, payable from the trust company's funds in the receiver's hands. From an order allowing applicants a stated sum out of the company's assets, the comptroller and J. H. Therrell as liquidator of the turst company, appeal.

Affirmed.

ELLIS J., dissenting. Appeal from Circuit Court, Dade County; Jefferson B. Browne, judge.

COUNSEL

Cary D Landis, Atty. Gen., and Carl T. Hoffman, of Miami, for appellants.

Burwell & Sibley, of Miami, for appellees.

OPINION

DAVIS, J.

In this case the appellees, as attorneys for complainants in a chancery proceeding in the circuit court, were employed to have wound up the business of the Guardian Trust Company and the City Turst Company in Miami, Fla. They filed a bill for that purpose and a receiver was appointed for both companies. The comptroller of the state intervened and was successful in securing a writ of prohibition under which he secured possession of the Guardian Trust Company as against the court receiver. See State ex rel. Landis, Attorney General, v. Circuit Court for Eleventh Judicial Circuit (Fla.) 135 So. 866; Id. (Fla.) 135 So. 870, 877.

In Lewis v. Gaillard, 70 Fla. 172, 69 So. 797 this court held: 'Where the counsel has been employed to obtain or create a fund for the joint benefit of both parties, his fees, if he prevails, not if he loses, may be paid out of the funds; but where the interests of the parties are adverse only, the legal taxable costs can be allowed.'

In all proceedings in the court below, subsequent to the comptroller's intervention, the interests of the complainants in the circuit court were adverse to the asserted power of the comptroller, so only legal costs can be allowed out of the trust estate as to the steps in the litigation subsequent to the comptroller's intervention.

For services rendered in bringing the bill of complaint and in having a receiver appointed for the Guradian Trust Company prior to action by the comptroller, the appellees are entitled to a reasonable fee for their services out of the trust estate, because to that extent they were successful in the litigation as between the complainant and the original defendant, and the suit was for the benefit of a class of persons having an interest in the preservation of the trust estate. ^[1]

The chancellor awarded a fee of $2,500 for such service. Upon the record before us we cannot say such fee was so excessive as to warrant a reversal of the order allowing the same, although it appears to be out of line with those heretofore approved by us as reasonable for a like service.

It is not clear that, in fixing the fee at such an amount, the chancellor allowed any compensation for complainants' counsel for his services rendered in the subsequent adverse litigation with the comptroller. This litigation was unsuccessful in so far as the Guardian Trust Company was concerned, and, had the chancellor allowed anything for such services, such allowance would have been erroneous. We must presume that the amount of the fee was fixed with reference to the services rendered by the counsel for the complainants in procuring the appointment of a receiver and having the trust estate preserved pending the assertion of the right to it by the comptroller; that being so, it does not appear that there is included in the amount allowed any allowance of attorneys fees for the unsuccessful adverse services of the appellees in seeking to secure a judicial administration of the assets of the Guardian Trust Company as against the comptroller.

The appeal in this court being from the order of the court dated October 15, 1931, allowing $2,500 attorneys' fees to be paid out of the assets of the Guardian Trust Company to Burwell & Sibley, the appellees, as attorneys for the complainant in the court below, and it not appearing that such allowance was erroneous under the authority we have heretofore cited, the decree appealed from should be affirmed and it is so ordered.

Affirmed.

BUFORD, C.J., and WHITFIELD and TERRELL, JJ., concur.

DISSENTING

ELLIS J. (dissenting).

Will Allen, by his solicitors, commenced a suit in the circuit court for Dade county for the appointment of a receiver for the City Trust Company and the Guardian Trust Company on May 8, 1931. The bill was in behalf of Will Allen, a creditor of the City Trust Company, and other creditors of both corporations. The City Trust Company was the owner of the majority of the capital stock of the Guardian Trust Company. The bill prayed for a preservation of the assets of both corporations, which it was alleged were being fraudulently manipulated, depleted, and destroyed by Morgan S. McCormick and his associates; there was a prayer that McCormick and his associates be required to return to the two corporations the assets so fraudulently misappropriated. The court appointed a receiver, H. H. Taylor, for both corporations.

Subsequently to the court's action in this regard, on May 9, 1931, the Honorable Ernest Amos, as comptroller of the state, appointed a liquidator for the Guardian Trust Company under the statutes of the state in such cases provided.

The Attorney General of Florida caused to be filed in this court a suggestion for a writ of prohibition to be directed to the circuit court for the eleventh judicial circuit to prohibit it from exercising jurisdiction in the cause. The circuit judge answered the rule nisi, to which a demurrer was interposed and the demurrer was sustained by a divided court. The opinion resting upon the proposition that, under the provisions of the statutes of this state relating to Banking, chapter 13576, Laws 1929, the action of the court in taking cognizance of the case and appointing a receiver was unauthorized as being without its jurisdiction. The court, speaking through Mr. Justice Whitfield, said:

'While upon proper parties being made the allegations of the bill of complaint filed by Will Allen may be sufficient for particular relief that would not exclude the statutory authority of the comptroller who sought intervention and was denied, yet, as the bill prayed for an equity receiver of all the assets of the trust companies shown to be insolvent to the entire exclusion of the statutory authority of the comptroller, the object of the bill of complaint was not within the inherent powers of a court of equity or within the proper scope of an equity court under the statutes above quoted.' 135 So. 866, 870.

The cases of State ex rel. Knott v. Willmer (Fla.) 135 So. 859, and State v. Barns, 99 Fla. 1258, 128 So. 860, were cited in support of the conclusion.

By and through its decisions involving the banking laws of the state, this court has reached the ultimate proposition that the Legislature has, by the acts in question, transferred to the executive department of the state the power to the exclusion of the judicial department to administer the assets of an insolvent bank. The language of the court as used in the majority opinions in the cases cited alone make that point perfectly clear, but, when considered in connection with the minority opinions in which contrary views were expressed, it is idle to say that even any exception or qualification exists to the doctrine as announced. The writer has never been in accord with such doctrine, finding no justification for it in reason, in the Constitution, or the purpose of the Statutes. However, such is the doctrine announced by a majority of this court and that doctrine should obtain in the consideration of this matter. So the 'object of the bill of complaint was not within the inherent powers of a court of equity or within the proper scope of an equity court under the statutes.' If that is true, the court, in the appointment of Taylor as receiver, was wholly without jurisdiction and the appointment was a nullity.

Upon final hearing in the case of State v. Circuit Court for Eleventh Judicial Circuit, supra, reported in 135 So. 866, this court, speaking through Mr. Justice Brown, the case being reported in 135 So. 870, 875, said that, while the action of the court in appointing Mr. Taylor as receiver for the City Trust Company was valid and within its jurisdiction, 'its action in appointing Mr. Taylor as receiver for the Guardian Trust Company was beyond its jurisdiction, and that the writ or prohibition to that extent should be made absolute.'

The result was that the writ was granted in so far as the court's powers are sought to be exercised in the matter of the appointment of a receiver for the Guardian Trust Company and denied as to its jurisdiction and powers in relation to the appointment of a receiver for the City Trust Company.

Messrs. Burwell and Sibley, solicitors for Allen and others in the suit for the receiver of the two corporations, submitted in October, 1931, their application to the circuit court for the eleventh judicial circuit for attorneys' fees to be paid to them from the funds of the Guardian Trust Company which the receiver appointed by the court for that corporation had taken into his possession.

Mr Ernest Amos, as comptroller, and J. H. Therrell, as liquidator of the Guardian ...