Colley v. Wolcott

• Decision Date: 19 April 1911
• Docket Number: 3,395.
• Citation: 187 F. 595
• Parties: COLLEY et al. v. WOLCOTT et al.
• Court: U.S. Court of Appeals — Eighth Circuit

187 F. 595

COLLEY et al. v. WOLCOTT et al.

No. 3,395.

United States Court of Appeals, Eighth Circuit.

April 19, 1911

Arthur Miller (Karnes, New & Krauthoff, on the brief), for appellants.

H. W Currey and Edward E. Sapp, for appellees.

Before SANBORN and ADAMS, Circuit Judges, and WM. H. MUNGER District judge.

ADAMS Circuit Judge (after stating the facts as above).

The services of the solicitors in this case resulted in rescuing from spoliators a large amount of property, not only for the benefit of the complainant, but for the benefit of all the stockholders of the Zinc Company, and by means of these services the property was brought under the control of the court. In these circumstances nothing is plainer than that the cost of a restitution of this kind should be borne by those benefited by it. Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157.

While allowances for solicitor's fees have sometimes been made in favor of the complainants in the suit, no reason is apparent why they should not be made directly to those who are entitled to it. They are officers of the court, and should properly be protected, when a trust fund created by them is in the custody of the court and subject to final disposition by it. It was so held in Central Railroad v Pettus, 113 U.S. 116, 124, 5 Sup.Ct. 387, 391 (28 L.Ed 915) where the Supreme Court said:

'And when an allowance to the complainant is proper on account of solicitor's fees, it may be made directly to the solicitors themselves, without any application by their immediate client.' It would have been better practice if a formal motion had been made for the allowance of the solicitor's fees. In this way the record in the case would have been more perfect. But this is a matter of practice resting largely in the discretion of the trial court, and its exercise one way or the other cannot be assigned for error. Moreover, no objection was made in the trial court to the method of procedure adopted. It first appears in the assignment of errors, filed almost six months after the decree was entered.

Again it is assigned for error that no evidence was offered on which to base the order allowing the solicitor's fees. This may and probably does mean that no formal testimony of the amount of services rendered or of the value of such services was introduced. The court recites in the decree however, that the parties appeared by their respective counsel, and that the court, after duly considering the report of the special master (who had been appointed to take the...