Danville Building Ass'n v. Gates, Civ. No. 410-D.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtBookwalter, Carter & Gunn, of Danville, Ill., for plaintiff
Citation66 F. Supp. 706
PartiesDANVILLE BUILDING ASS'N OF DANVILLE, ILL., v. GATES et al.
Docket NumberCiv. No. 410-D.
Decision Date09 July 1946

66 F. Supp. 706

DANVILLE BUILDING ASS'N OF DANVILLE, ILL.,
v.
GATES et al.

Civ. No. 410-D.

District Court, E. D. Illinois.

July 9, 1946.


Bookwalter, Carter & Gunn, of Danville, Ill., for plaintiff.

Wm. Acton, of Danville, Ill., for Ethel Wert.

Benjamin I. Norwood, of Danville, Ill., for Elizabeth Gates.

LINDLEY, District Judge.

Plaintiff filed a complaint in the nature of a bill of interpleader under the provisions of Title 28 U.S.C.A. § 41 subdivision 26(d) which resulted in a judgment that the property in the hands of the stakeholder

66 F. Supp. 707
belonged to and should be delivered to defendant Wert, in which the question of whether plaintiff is entitled to recover from the fund its costs and attorneys fees was reserved. That issue is now presented

The pertinent paragraph of the act provides that the "court shall hear and determine the cause and shall discharge the complainant from further liability; and * * * enter all such other orders and decrees as may be necessary or convenient to carry out and enforce the same." This provision is substantially the same as in earlier statutes. Though the act contains no express provision for the allowance of attorneys fees, the federal courts held quite generally, at least prior to the decision in Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1457, and in equity jurisprudence as it has come to us from its English ancestry, attorneys fees may be allowed at the discretion of the court. Hunter v. Federal Life Ins. Co., 8 Cir., 111 F.2d 551; Terry v. Supreme Forest, D.C., 21 F.2d 158; Texas Co. v. Xavier, D.C., 54 F.Supp. 722; General American Life Ins. Co. v. Jackel, D.C., 42 F.Supp. 475; Stitzel-Weller Distillery v. Norman, D.C., 39 F.Supp. 182; Equitable Life Assur. Soc. of U. S. v. Kit, D.C., 22 F.Supp. 1022; Edner v. Massachusetts Mut. Life Ins. Co., D.C., 59 F.Supp. 688.

Defendant insists that since Erie v. Tompkins, supra, whether plaintiff as an interpleader is entitled to attorney's fees must be determined by the law of Illinois. The authorities in that state are conclusive to the effect that attorneys fees can not be allowed. There is no statute in the state of Illinois creating a right of interpleader, but it is a part of the state's innate equity jurisprudence. City National Bank & Trust Co. v. Dunham, 306 Ill. App. 354 at 362, 28 N.E.2d 812. The Supreme Court of Illinois in The Metropolitan Life Insurance Co. v. Kinsley, 269 Ill. 529, 530, 531, 109 N. E. 1011, 1012, said: "Although the rule is to the contrary in many other jurisdictions in this country (2 Perry on Trusts, (6th Ed.) §§ 916-918), this court refused, under its general chancery powers, following the old English rule, to allow compensation to trustees for their time and trouble in caring for trust estates, unless there was a provision for compensation in advance. * * * In Chapin v. Dake, 57 Ill. 295, 11 Am.Rep. 15, this court refused to allow solicitor's fees on a bill of interpleader, the principle involved being identical with that in the cases heretofore cited. This case has never been overruled. We are well aware that, not only in the Federal courts, but in certain other jurisdictions in this country, a different rule prevails, as is shown by the numerous cases cited by counsel for appellant; but the law has been so long and firmly established in the jurisprudence of this state on this question that it ought not now to be changed by the courts without statutory authority." The appellate court commented in Eulette, Executor v. Zilske, 222 Ill.App. 128 at page 134 as follows: "Our law is rather rigorous, and differs from that of many other jurisdictions. 2 Perry on Trusts (6th Ed.), secs. 916-918."

Consequently, in view of the fact that the decisions of the federal courts before Erie v. Tompkins conflict with the rule in Illinois, it becomes necessary to determine whether the Erie doctrine applies to the question of allowance of attorneys' fees for a successful stakeholder who has come into the federal court, when he would be denied that remedy in the state court. In Russell v. Todd, 309 U.S. 280 at 294, 60 S.Ct. 527, 534, 84 L.Ed. 754, the court expressly reserved jurisdiction upon this question, saying: "In the circumstances we have no occasion to consider the extent to which federal courts, in the exercise of the authority conferred upon them by Congress to administer equitable remedies, are bound to follow state statutes and decisions affecting those remedies." (Italics mine.) In the earlier case of Sprague v. Ticonic National Bank et al., 307 U.S. 161, 59 S.Ct. 777, 779, 83 L.Ed. 1184, the court, in discussing the allowance of fees, said: "Allowance of such costs in appropriate situations is part of the historic equity jurisdiction of the federal courts. The suits `in equity' of which these courts were given `cognizance' ever since the First Judiciary Act, * * * constituted that body of remedies, procedures and practices which theretofore had been evolved in the English Court of Chancery, subject, of

66 F. Supp. 708
course to modifications by Congress, e. g., Michaelson v. United States, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed....

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10 practice notes
  • Occidental Life Ins. Co. of California v. Kielhorn, No. 1674.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 12 Junio 1951
    ...for the words "trials at common law". 2 Authorities to the contrary: Danville Building Ass'n of Danville, Ill. v. Gates, D.C., 66 F.Supp. 706; Ross v. Service Lines, Inc., D.C., 31 F.Supp. 3 "The falsity of any statement in the application for any policy covered by this chapter shall not ba......
  • Minnesota Mut. Life Ins. Co. v. Gustafson, No. 75C868.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 25 Mayo 1976
    ...Bankers Life Assurance Corp. v. Blood, 69 F.Supp. 705 (N.D.Ill.1947) (Judge Campbell), and Danville Building Association v. Gates, 66 F.Supp. 706 (E.D.Ill.1946) (Judge In Palomas, the Ninth Circuit, notwithstanding California law to the contrary, awarded fees to the stakeholder in a statuto......
  • Bank of China v. Wells Fargo Bank & Union Trust Co., No. 29287
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 17 Marzo 1952
    ...Bankers Life Assurance Co. v. Blood, D.C.N.D. Ill. 1947, 69 F.Supp. 705; Danville Building Association v. Gates, D.C.E.D.Ill. 1946, 66 F.Supp. 706. Concededly, under California law, attorney's fees are not allowable in actions in the nature of interpleader. Calif.Code of Civil Procedure 102......
  • Aetna Life Insurance Company v. Johnson, No. 61 C 1985.
    • United States
    • U.S. District Court — Northern District of Illinois
    • 18 Junio 1962
    ...district courts in applying a traditional equitable remedy." In support of this statement I cited Danville Building Ass'n v. Gates, D.C., 66 F.Supp. 706, wherein the late learned Judge Lindley, when confronted with the same issue presently before me, denied the interpleading stakeholder the......
  • Request a trial to view additional results
10 cases
  • Occidental Life Ins. Co. of California v. Kielhorn, No. 1674.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 12 Junio 1951
    ...for the words "trials at common law". 2 Authorities to the contrary: Danville Building Ass'n of Danville, Ill. v. Gates, D.C., 66 F.Supp. 706; Ross v. Service Lines, Inc., D.C., 31 F.Supp. 3 "The falsity of any statement in the application for any policy covered by this chapter shall not ba......
  • Minnesota Mut. Life Ins. Co. v. Gustafson, No. 75C868.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 25 Mayo 1976
    ...Bankers Life Assurance Corp. v. Blood, 69 F.Supp. 705 (N.D.Ill.1947) (Judge Campbell), and Danville Building Association v. Gates, 66 F.Supp. 706 (E.D.Ill.1946) (Judge In Palomas, the Ninth Circuit, notwithstanding California law to the contrary, awarded fees to the stakeholder in a statuto......
  • Bank of China v. Wells Fargo Bank & Union Trust Co., No. 29287
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 17 Marzo 1952
    ...Bankers Life Assurance Co. v. Blood, D.C.N.D. Ill. 1947, 69 F.Supp. 705; Danville Building Association v. Gates, D.C.E.D.Ill. 1946, 66 F.Supp. 706. Concededly, under California law, attorney's fees are not allowable in actions in the nature of interpleader. Calif.Code of Civil Procedure 102......
  • Aetna Life Insurance Company v. Johnson, No. 61 C 1985.
    • United States
    • U.S. District Court — Northern District of Illinois
    • 18 Junio 1962
    ...district courts in applying a traditional equitable remedy." In support of this statement I cited Danville Building Ass'n v. Gates, D.C., 66 F.Supp. 706, wherein the late learned Judge Lindley, when confronted with the same issue presently before me, denied the interpleading stakeholder the......
  • Request a trial to view additional results

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