Cohn v. Edler
Decision Date | 14 June 1937 |
Docket Number | No. 8303.,8303. |
Citation | 90 F.2d 823 |
Parties | COHN v. EDLER. |
Court | U.S. Court of Appeals — Ninth Circuit |
Walter Rowson, of Reno, Nev., for appellant.
Thatcher & Woodburn, Geo. B. Thatcher, Wm. Woodburn, and Wm. J. Forman, all of Reno, Nev., and Clarence A. Shuey and Grant H. Wren, both of San Francisco, Cal., for appellee.
Before WILBUR, GARRECHT, and HANEY, Circuit Judges.
A referee in bankruptcy has appealed from an order disallowing items claimed by her in an account submitted to the bankruptcy court in a bankruptcy matter.
The Owl Drug Company, a Nevada corporation, was adjudicated a bankrupt on October 10, 1932, on its voluntary petition. Its assets consisted of 120 retail drug stores, located in several states, warehouses for such stores, and stock in two other corporations. On the same date the courts below made a general reference order, referring the bankruptcy matter to appellant, as referee in bankruptcy, and appointed a receiver. Appellant called the first meeting of creditors to be held on October 29, 1932. At that meeting the creditors failed to appoint a trustee, and the meeting was continued. Appellant thereafter appointed one Richard Kirman trustee who accepted the appointment and qualified on November 4, 1932. He resigned the following day.
Thereafter a petition was filed asking that the order of reference be revoked. After hearing on November 7, 1932, the court below said:
The court below thereupon entered an order setting aside the order of general reference, "until, and subject to, the further order of this Court." The order further provided: "* * * that, subject to the further order of this Court, all proceedings in the matter of said Bankrupt be had in this Court, excepting that the Referee shall retain power to, and she is hereby authorized and directed to, issue and serve all notice or notices to creditors required by law for a meeting of creditors to be held before this Court * * * for the election of a Trustee or Trustees, or to issue and serve any other notice or notices to creditors as may be required for the hearing of any matter before this Court, as the Court may direct."
On February 15, 1934, appellant was directed by order to give notice of a hearing upon the trustee's report, upon applications for allowances of compensation, and upon application for the payment of a dividend. On September 14, 1935, appellant was directed by order to give notice of a hearing upon a report, and upon a petition asking authority to compromise certain controversies and to pay a dividend. On July 14, 1936, appellant was directed by order to give notice of a hearing of a trustee's report, the question of payment of final dividend and application for allowances of compensation.
On August 3, 1936, appellant filed her account. In that account she claimed a total of $20,009.99. The account included the following items:
1. Notices to creditors 27,615 notices @ 15¢ ..... $4,142.25 1,495 notices @ 25¢ ..... 373.25 _________ $ 4,515.50 2. Indemnity expenses for stenographic services, office rent, and janitor service ................................. $ 6,035.00 3. Traveling expenses — 35 trips @ $10 each .................................... $ 350.00 4. Commissions on disbursements to creditors ............................... $12,615.38
11 U.S.C.A. § 68(a) provides that: "Referees shall receive as full compensation for their services, payable after they are rendered, a fee of $15 deposited with the clerk at the time the petition is filed in each case, except when a fee is not required from a voluntary bankrupt, and 25 cents for every proof of claim filed for allowance, to be paid from the estate, if any, as a part of the cost of administration, and from estates which have been administered before them 1 per centum commissions on all moneys disbursed to creditors by the trustee, or one-half of 1 per centum on the amount to be paid to creditors upon the confirmation of a composition."
Subdivision (c) provides: "In the event of the reference of a case being revoked before it is concluded, and when the case is specially referred, the judge shall determine what part of the fee and commissions shall be paid to the referee."
11 U.S.C.A. § 112 provides: "Neither the referee, receiver, marshal, nor trustee shall in any form or guise receive, nor shall the court allow him, any other or further compensation for his services than that expressly authorized and prescribed in this title."
Pursuant to 11 U.S.C.A. § 53, which authorizes the Supreme Court to make all necessary rules and orders for carrying out the provisions of the Bankruptcy Act, that court promulgated General Order 35, of which subdivision 2 (11 U.S.C.A. following section 53) provides: "The compensation of referees, prescribed by the act, shall be in full compensation for all services performed by them under the act, or under these general orders; but shall not include expenses necessarily incurred by them in publishing or mailing notices, in traveling, or in perpetuating testimony, or other expenses necessarily incurred in the performance of their duties under the act and allowed by special order of the judge."
Neither party questions the power of the District Court to make rules in bankruptcy matters. 28 U.S.C.A. § 731 authorizes such court generally to make rules, but bankruptcy matters are included, if at all, by implication. No specific part of the Bankruptcy Act confers such power...
To continue reading
Request your trial-
In re Jensen-Farley Pictures, Inc.
...In re Moskowitz, 25 F.Supp. 341 (E.D.N.Y.1938); In re Owl Drug Co., 16 F.Supp. 139 (D.Nev. 1936), aff'd sub nom. Cohn v. Edler, 90 F.2d 823 (9th Cir.1937); In re Pologe, 13 F.Supp. 1010 (S.D.N.Y.1935); In re Natural Dry Ginger Ale Corporation, 9 F.Supp. 1003 (W.D.N.Y.1935); In re Hacker, 38......
-
In re STN Enterprises, Inc.
...liberty to engage in "vicarious generosity." See In re Owl Drug Company, 16 F.Supp. 139, 142 (D.Nev.1936), aff'd sub nom. Cohn v. Edler, 90 F.2d 823 (9th Cir.1937). A second-order category of service subject to some uncertainty is the time expended in preparing the application for legal fee......
-
SECURITIES & EXCH. COM'N v. WL MOODY & CO., BANK.(UNINC.)
...defendant, it would be unreasonable not to do so. E. g., In re Owl Drug Co., 16 F.Supp. 139 (D.Nev. 1936), aff'd sub nom., Cohn v. Edler, 90 F.2d 823 (9th Cir. 1937). The Court finds and concludes that Receiver's attorney provided expert, efficient legal services on a high priority basis to......
-
In re Barry Yao Company
...and hence were allowable under § 62, sub. a. In re Owl Drug Co., D.C.D. Nev.1936, 16 F.Supp. 139, affirmed sub nom Cohn v. Elder, 9 Cir., 1937, 90 F.2d 823; Page v. Rogers, 6 Cir., 1906, 149 F. 194, reversed on other grounds, 1909, 211 U.S. 575, 29 S.Ct. 159, 53 L.Ed. 332; In re Wallace, D.......