Clarke v. Hot Springs Electric Light & Power Co.

• Decision Date: 01 April 1935
• Docket Number: No. 1140-1142.,1140-1142.
• Citation: 76 F.2d 918
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: CLARKE et al. v. HOT SPRINGS ELECTRIC LIGHT & POWER CO. et al. CUFF v. SAME. CLARKE et al. v. WRIGHT et al.

76 F.2d 918 (1935)

CLARKE et al. v. HOT SPRINGS ELECTRIC LIGHT & POWER CO. et al.

CUFF v. SAME.

CLARKE et al. v. WRIGHT et al.

Nos. 1140-1142.

Circuit Court of Appeals, Tenth Circuit.

April 1, 1935.

M. A. Kline, of Cheyenne, Wyo., for appellants.

Hagens & Wehrli and E. E. Enterline, all of Casper, Wyo., and Wilfred O'Leary, of Cheyenne, Wyo., for appellees R. J. Ireland and Thermopolis Northwest Electric Co.

C. J. Heermance, of New York City, for appellee Herman Rehrer.

Fred R. Wright, Gail L. Ireland, Clarence L. Ireland, and Dudley W. Strickland, all of Denver, Colo., and Charles Caldwell, of New York City, pro se.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

McDERMOTT, Circuit Judge.

These appeals grow out of litigation which was before this court in Clarke v. Hot Springs Electric Light & Power Company, 55 F.(2d) 612. At that time this court affirmed, save in a minor particular, a decree of the district court of Wyoming entered on July 16, 1930. Since the present appeals are, in part, from orders of the trial court refusing to tamper with that decree after its affirmance, its pertinent provisions may be noticed.

That decree was entered in a suit to foreclose a mortgage on the property of the Hot Springs Electric Light & Power Company. There being insuperable objections to foreclosing the specific lien of the mortgage, the decree directed that the defendants pay into court the sum of $72,000, found to be the value of the mortgaged properties at the time they were converted by defendants, with 7 per cent. interest for four years, or a total sum of $92,160; a lien was fastened on the properties of the corporate defendant to secure the payment of said sum; upon the payment of that sum to the clerk of the court, the liens of the decree and the mortgage to be discharged. In paragraph 10, it was decreed that "the attorneys for the said plaintiffs be allowed and paid the sum of $10,000 out of the amount hereinabove decreed to be paid * * * together with their expenses necessarily incurred in the prosecution of this case, which the court finds to be $673.80." The decree provided that the balance of the fund should be distributed to the bondholders.

From this decree the plaintiffs appealed, contending that the court erred in its finding as to the value of the mortgaged properties at the time of their conversion by defendants. No assignment of error was directed to the point that the decree did not provide for interest from the date of the decree until payment, nor was error assigned as to the allowance of attorneys' fees from the fund. Error was assigned because the decree did not provide for reimbursement to plaintiffs for certain expenses incurred in preparing the case for trial.

This court directed the trial court to make allowance, out of the fund, to plaintiffs for reasonable and necessary expenses incurred in the preparation of the case for trial, and "In all other respects," the opinion and mandate recite, "the decree is affirmed."

Still dissatisfied, plaintiffs petitioned for certiorari, which was denied. 287 U. S. 619, 53 S. Ct. 19, 77 L. Ed. 537. In the petition for the writ, the attorneys to whom allowance had been made for fees were made respondents, and that allowance was for the first time challenged. Upon the denial of this petition, the mandate was filed in the trial court on March 21, 1932.

On July 20, 1932, a hearing was had as to the amount of expenses which plaintiffs had incurred in preparing for trial. Evidence was taken and the matter submitted on briefs. John T. Clarke, a bondholder not a named party, claimed to have expended several thousand dollars on this case and allied matters, and also claimed $4,400 for 110 days' time he testified he had devoted to the case.

On November 4, 1932, the trial court filed an opinion setting forth its views, and on December 12, 1932, entered findings of fact, conclusions of law, and a "Final Decree" allowing $1,293.98 for expenses incurred by plaintiffs and John T. Clarke, and disallowing the other amounts claimed.

This order of December 12, 1932, was final as to all matters which were remanded to the trial court for determination. No appeal was taken within the statutory period. Five months after the final order, but within the term, an elaborate petition for rehearing was filed, seeking a review of all of the court's findings of December 12, and bringing onto the record, for the first time, an entirely new question, to wit, that the decree of July 16, 1930, should be amended to require the defendants to pay interest on the amount decreed to be owing by them, for the time elapsing pending plaintiffs' unsuccessful efforts to increase the award. On May 8, 1933, this phase of the petition was denied, and the petition continued as to other matters. On that day, the defendants paid into court the sum decreed to be due from them.

On August 5, 1933, an appeal was taken by plaintiffs below from the order of May 8, 1933 (No. 1140) "and particularly" from that part of the order denying interest pending the appeal. The only other part of the order of May 8 was to continue the hearing on the balance of the petition to a future date, which is not an appealable order. On the same date another appeal (No. 1141) was taken from the same order by the trustee for the depositing bondholders. On August 8, 1933, amended petitions for appeal were filed which were not allowed, and which differed from the petitions of August 5 only in phraseology.

On April 4, 1934, the trial court entered an "Order Overruling Petition for Rehearing and Making Allowance to John T. Clarke for Services." The order allowed John T. Clarke $1,250 for his services, but made no other change in the order of December 12, 1932.

On July 2, 1934, an appeal was taken from the order of December 12, 1932, "as modified by the order of April 4, 1934." This appeal is likewise docketed as No. 1140.

On May 8, 1933, the date on which defendants paid the $92,160 into court, the trial court ordered the clerk to pay Wright and Ireland the $10,673.80, allowed them by the decree of July 16, 1930, for services and expenses as counsel for plaintiffs. This was done. On July 26, 1933, plaintiffs filed a motion to require Wright and Ireland to repay the money into court, claiming that the money belonged to plaintiffs and not their counsel. To which Wright and Ireland filed an answer, offering to pay any other attorneys participating in the litigation such sums as the court decreed, and to account to John T. Clarke for the sums advanced by him for services in this case. Many other counsel filed claims against the fund. Extensive hearings were held, and on April 5, 1934, the trial court entered findings and a decree; allowances were made to all other counsel and the right of John T. Clarke to reimbursement for sums advanced by him was recognized; Wright and Ireland were required to account for the balance shown on a striking of accounts between them and Mr. Clarke. On July 2, 1934, an appeal was taken by plaintiffs and John T. Clarke only, from that order (No. 1142).

It is extremely doubtful whether there is anything before us except the amount of the allowance to John T. Clarke for his services. The decree of July 16, 1930, was affirmed by this court except as to the one item of expenses of plaintiffs in preparing for trial. The trial court had no authority to alter or revise the decree in any other particular. Gaines v. Rugg, 148 U. S. 228, 13 S. Ct. 611, 37 L. Ed. 432. The trial court was without authority to modify the decree, after affirmance, by adding to it a provision as to interest or by changing the allowance of counsel fees from "the attorneys for the said plaintiffs" to "the plaintiffs." If the decree of July 16, 1930, was in error in such respects, the points should have been raised on the first appeal. Errors in a decree rendered July 16, 1930, cannot be corrected by appeals taken in August, 1933. Certainly a trial court should not be reversed for declining to amend a decree which this court has affirmed.

The only power which the trial court had after affirmance was to enforce the decree as affirmed, and to make an allowance for expenses. After a full hearing, it made such allowances on December 12, 1932. That order was appealable, but no appeal was taken within the statutory period. A petition for rehearing seasonably filed within the time for appeal will toll the time for appeal. But the petition was not filed within the time for appeal. A petition for rehearing cannot resurrect a right of appeal which has expired. If filed within the term, even after the time for appeal has expired, the trial court may grant it, thus vacate the decree, and start again. But if the rehearing is denied, the original decree stands, and the right of appeal is not revived. All this has been carefully spelled out by the courts. Larkin Packer Co. v. Hinderliter Tool Co. (C. C. A. 10) 60 F.(2d) 491; Northwestern Public Service Co. v. Pfeifer (C. C. A. 8) 36 F.(2d) 5; Chicago, M. & St. P. Ry. Co. v. Leverentz (C. C. A. 8) 19 F.(2d) 915; Conboy v. First Nat. Bank of Jersey City, 203 U. S. 141, 27 S. Ct. 50, 51 L. Ed. 128. The trial court denied the rehearing as to the expenses, and allowed it only as to the allowance to Mr. Clarke for his services. The only avenue of escape from these settled principles is to treat the allowance made to Mr. Clarke in 1934 as a rehearing on the whole matter of expenses.

No motions to dismiss the appeals have been interposed; the questions have not been briefed; and while we entertain grave doubts about the pendency of the appeals except as to the amount allowed John T. Clarke for his services, we turn briefly to the merits.

Expenses Allowed to Plaintiffs.

John T. Clarke, a business man, assisted in preparing the case for trial. He testified he spent 110 days in that work; he appraised the value of his services at $40 a day, and testified that his services "were much...