Blacker v. Kitchen Bros. Hotel Co.
| Decision Date | 22 June 1937 |
| Docket Number | 30028. |
| Citation | 273 N.W. 836,133 Neb. 66 |
| Parties | BLACKER v. KITCHEN BROS. HOTEL CO. KITCHEN BROTHERS HOTEL CO. v. OMAHA SAFE DEPOSIT CO. ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. It is the practice in this state to allow the recovery of attorneys' fees and expenses only in such cases as are provided for by statute, or where the uniform course of procedure has been to allow such recovery.
2. Where many persons have a common interest in a trust fund or property, and one of them, for the benefit of all, at his own cost and expense, takes legal action for its preservation or administration, the court of equity in which the suit was brought may order the successful litigant to be reimbursed his costs and expenses, including counsel fees from the property of the trust or order those benefited to contribute proportionately toward that expense.
3. But allowances for attorneys' fees and expenses in such cases can only be made after the services have been rendered and a determination made that they were of direct and substantial benefit to other members of the class who are alleged to have benefited therefrom.
Appeal from District Court, Douglas County; Dineen, Judge.
Action by David Blacker against the Kitchen Brothers Hotel Company consolidated in the district court with an action by the Kitchen Brothers Hotel Company against the Omaha Safe Deposit Company, impleaded with Bruno F. Meyer, an objecting bondholder, and others. From two adverse orders, the objecting bondholder appeals.
Reversed with directions.
Attorneys' fees and expenses are allowed only where provided for by statute, or where uniform course of procedure has been to allow such recovery.
Walter E. Schroeder and Howard Saxton, both of Omaha, for appellant.
Fradenburg, Webb, Beber, Klutznick & Kelley, of Omaha, for appellees Blacker and Omaha Safe Deposit Co.
Finlayson, Burke & McKie, of Omaha, for appellee Kitchen Bros. Hotel Co.
Leon & White and Kennedy, Holland, DeLacy & Svoboda, all of Omaha, for appellees V. Huhnke et al.
Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, PAINE, and CARTER, JJ.
This is an appeal from two orders of the district court for Douglas county allowin V. Huhnke, a bondholder of the Kitchen Brothers Hotel Company, $500 for expenses and $2,500 for attorney's fees for the purpose of prosecuting an appeal to the supreme court in a case in which the rights of all bondholders were involved.
The record discloses that in the early part of 1935 a proposed plan of reorganization of the Kitchen Brothers Hotel Company was filed in the district court for Douglas county. It shows that V. Huhnke appeared as a bondholder and objected to the plan and eventually secured a withdrawal of the plan to the benefit of all bondholders. In December, 1935, a new proposed plan of reorganization was filed for the consideration of the court. V. Huhnke again appeared as a bondholder and objected to the jurisdiction of the court over the subject-matter and over the person of the objector as a bondholder and all other bondholders similarly situated. Many hearings were held on various phases of the matter and the case finally tried. Thereafter the court approved the reorganization plan. The property involved in this proceeding ranges in value from $750,000 to $1,250,000, as represented and evidenced by the investment in the Paxton Hotel in Omaha and, in fact, belongs to the bondholders. The objector, V. Huhnke, contends that the importance of the matters involved and the desirability of finally adjudicating the rights of all the parties to the action in the court of last resort in this state necessitates that an appeal be taken to the supreme court to secure a final determination. The objector, V. Huhnke, claims to be the only bondholder who has preserved a record in the district court that would properly raise all the issues necessary to such a final determination. The record shows that the legal work and briefing would be intricate and involved and would necessitate much time and study. The objector further alleged that such an appeal would be beneficial to all bondholders involved. The trial court, after a hearing, sustained the contentions of V. Huhnke and made the allowances for costs and attorney's fees hereinbefore set out and directed the Omaha Safe Deposit Company, successor trustee, to pay said amounts to the attorney for the said V. Huhnke. Bruno F. Meyer, a bondholder, filed a motion for a new trial which was overruled. Bruno F. Meyer then perfected his appeal to this court. The question for our determination is whether the trial court properly made the allowances for attorney's fees and expenses.
The order of the court allowing expense money to the attorney for V. Huhnke contained the following langauge: " That Omaha Safe Deposit Company, successor trustee in the above entitled matter, be and it hereby is authorized and directed to pay forthwith to Fred S. White, attorney for V. Huhnke, objecting bondholder, the sum of $500 to be expended for the preparation of the bill of exceptions, transcript, briefs and the perfection of an appeal to the supreme court of the state of Nebraska, and such other sums, if any, as may be incurred as costs in connection with the perfecting of an appeal to the...
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