Baynes v. Bank of Caruthersville

• Decision Date: 05 July 1938
• Docket Number: No. 5978.,5978.
• Citation: 118 S.W.2d 1051
• Court: Missouri Court of Appeals
• Parties: BAYNES v. BANK OF CARUTHERSVILLE.

118 S.W.2d 1051

BAYNES v. BANK OF CARUTHERSVILLE.

No. 5978.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Appeal from Circuit Court, Pemiscot County; Louis H. Schult, Judge.

"Not to be published in State Reports."

Action by R. F. Baynes against the Bank of Caruthersville to recover a fee for assisting in the liquidation of the defendant bank. Judgment for plaintiff for $3,462.35, and defendant appeals.

Affirmed.

Von Mayes, of Caruthersville, for appellant.

R. F. Baynes, pro se, and Merrill Spitler, both of New Madrid, for respondent.

ALLEN, Presiding Judge.

This is an appeal by the Commissioner of Finance of the State of Missouri, from a judgment of the Circuit Court of Pemiscot County allowing R. F. Baynes an attorney's fee of $3,452.35 for assisting in the liquidation of the Bank of Caruthersville.

The respondent's pleading and proof was to the effect that in March, 1934 he was notified by the Commissioner of Finance that he had been appointed to represent the Special Deputy Commissioner of Finance in charge of the closed Bank of Caruthersville. At the time of his appointment he was representing the department in the liquidation of several other closed banks. With his appointment he received a schedule of fees from the department which was to govern his compensation. The schedule provided $40 for a full day spent in the courtroom; $20 a day for a full day spent in his office briefing and preparing a case for trial; $25 for a full day spent outside the office, but not in court, in making investigations— plus expenses; $2.50 to $5 for preparing orders for the compromise of notes, depending on the amount involved, and $10 for filing suit on notes when a default judgment was taken. Special matters involved in litigation were to be submitted to the department before trial for agreement on the fee.

The respondent stated that under this arrangement he furnished the department an itemized statement for seventy-three days work outside the office and not in court; fifteen days in court and an item of expense in the amount of $27.35. In addition to these services he had an important case before the Supreme Court. After he was appointed 98 per cent. of the depositors petitioned the Circuit Court to permit a depositor's committee to liquidate the bank rather than the department. In order to prevent this Mr. Baynes, at the request of the department, made application to the Supreme Court for a writ of prohibition against the Circuit Court. The legal question involved was new and required considerable briefing and several trips to Jefferson City for conferences with the department and appearances before the Supreme Court and its judges. The case was argued in the Supreme Court and settled before an opinion was handed down. For services in connection with this case Mr. Baynes charged $1,000, which he says was less than allowed under the schedule.

When his bill was presented to the department the Commissioner protested that it was too high and finally notified him that he would allow a fee of $1,750 plus the expense item of $27.50. The respondent then petitioned the Circuit Court to allow his fee in the sum of $3,425 and the expense item on the theory that the Commissioner fixed his compensation by the fee schedule.

The answer filed by the department plead that upon the rendition of the respondent's bill for services the Commissioner fixed his fee at $1,750 and allowed the expense item. Otherwise the answer was a general denial. The judgment of the trial court found that the Commissioner had fixed the respondent's fee, when he was employed, by the fee schedule and that he was entitled to be paid in accordance with his statement submitted.

The department did not offer any evidence but took the position that the Circuit Court was without jurisdiction to allow the respondent a fee in excess of the sum of $1,750 as fixed by the Commissioner. Both parties take the position that a proper determination of the case hinges on the meaning of the word "fix" as used in the statute empowering the Commissioner of Finance to employ deputies and counsel and pay them. The respondent contends that his fee was "fixed" by the Commissioner when he was employed and informed that his pay would be governed by the fee schedule. The appellant contends that his fee was "fixed" by the Commissioner when he stated that he would approve a fee of $1,750 and that the Circuit Court could not increase it.

That part of Sections 5323 and 5324, R. S.Mo.1929 (Mo.St.Ann. §§ 5323, 5324, pp. 7552, 7553) applicable to the question is as follows:

"He [the Commissioner of Finance] may employ such expert assistants and counsel * * * as he may deem necessary in the liquidation. * * * Provided however, that no salaries or attorneys fees shall be paid unless approved by the circuit court, or judge thereof in vacation, which circuit court, or judge thereof in vacation, may refuse to approve any salaries or attorney's fees that he may deem exorbitant, and set a less fee or salary, which fee or salary shall be the amount paid."

"The commissioner shall pay out of the funds in his hands * * * all expenses of liquidation, subject to the approval of the circuit court, or judge thereof in vacation. * * * He shall, in like manner, fix and pay the compensation of special deputy commissioners, assistants, counsel and other employes appointed to assist him in such liquidation pursuant to the provisions of this article."

Admittedly, under this statute, the Circuit Court does not have jurisdiction to fix the fees of a deputy or lawyer in the first instance but it is the duty of the Commissioner of Finance to act on such matters...