Boice v. Boice, Civil Action No. 2100.

• Court: U.S. District Court — District of New Jersey
• Writing for the Court: Lum, Fairlie & Wachenfeld, by Ralph E. Lum, all of Newark, N. J., for plaintiff
• Citation: Boice v. Boice, 56 F.Supp. 339 (D. N.J. 1944)
• Decision Date: 10 August 1944
• Docket Number: Civil Action No. 2100.
• Parties: BOICE v. BOICE et al.

56 F. Supp. 339

BOICE v. BOICE et al.

Civil Action No. 2100.

District Court, D. New Jersey.

August 10, 1944.

Lum, Fairlie & Wachenfeld, by Ralph E. Lum, all of Newark, N. J., for plaintiff.

Milton M. Unger, of Newark, N. J., for defendants Edith Gibby Boice and Alfred A. Stein, Jr., as sequestrator.

Foley & Francis, by John J. Francis, all of Newark, N. J., for defendants First Nat. Bank of Palm Beach and Florida Bank & Trust Co.

FAKE, District Judge.

After the opinion of this court in, D.C., 48 F.Supp. 183, had been sustained at the circuit in, 3 Cir., 135 F.2d 919, the attorney for the successful defendant, Edith Gibby Boice, filed a petition for an attorney's fee to be taxed against the defeated plaintiff herein.

That this court may make an allowance to an attorney, in a proper case, after the coming down of a mandate, is made clear by the ruling in Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L. Ed. 1184. But is this a proper case in which to make such an allowance?

This unfortunate defendant and her attorney have been forced into unnecessary and quite unjustifiable litigation, and solely because of the attorney's steadfast and intelligent devotion to the cause the defendant finally was sustained in her rights, all of which will appear by a reading of the two opinions in the cases above cited. She is without funds other than a small amount under the control of this court which her attorney is reluctant to deplete by taking an allowance. The desire here to make him an allowance to be assessed against the plaintiff is all but compelling but it is found that this court is quite without the necessary power to meet the urge.

A study has been made of the statutory law on the subject extending from the first statute on the subject found in the Act of September 29, 1789, 1 Stat. 93, down to and including the statute now in force, 28 U.S.C.A. § 571, which provides that: "The following fees and no other shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States * * *." Neither this statute nor any other known Federal statute makes any provision which would seem to authorize the taxing of such an allowance as is sought here to be taxed against the defeated litigant. A perusal of the speech of Senator Bradbury of Maine found in Congressional Globe Vol. 26 and 27, Part 2, Appendix Page 207, would seem to indicate that the intent of the legislation was at once to destroy the discretionary power...