Fiske v. Buder

Citation125 F.2d 841
Decision Date13 March 1942
Docket NumberNo. 12013.,12013.
PartiesFISKE et al. v. BUDER et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Jesse T. Friday, of St. Louis, Mo. (E. J. Doerner, of Tulsa, Okl., on the brief), for appellants.

G. A. Buder, Jr., of St. Louis, Mo. (Oscar E. Buder, of St. Louis, Mo., on the brief), for appellees.

Before THOMAS and JOHNSEN, Circuit Judges, and REEVES, District Judge.

THOMAS, Circuit Judge.

In 1898, Ehrhardt D. Franz of Saint Louis, Missouri, died testate, leaving an estate consisting of stocks, bonds and real estate. By the terms of his will his widow, Sophie Franz, was given a life interest in the estate with remainder over in equal shares to his ten children.

In 1909 the surviving widow created a trust, the res of which consisted of all the property owned by her in her own right and also as life tenant under the will of her deceased husband. The appellee, G. A. Buder, and G. A. Franz, now deceased, one of the sons of Ehrhardt D. Franz and Sophie Franz, were named as trustees in the instrument creating the trust. A clause of the instrument also provided that the law firm of Buder and Buder consisting of G. A. Buder, a trustee, and his brother, Oscar E. Buder, should be employed by the trustees as their counsel.

About 1924 dissension arose between the trustees and the owners of 6 2/3 shares of the remainder estate on one side and the owners of 3 1/3 shares on the other. The dissension resulted in litigation which has been carried on in the courts of Missouri and the Federal courts ever since. The facts necessary to a complete understanding of this controversy will be found in the reported decisions of the Supreme Court of Missouri, of the Supreme Court of the United States, and of this court.1

Sophie Franz died in 1930, and her life estate was thereby terminated. The trustees under the trust agreement of 1909 claimed as compensation for their services a commission of five per cent estimated not only upon that part of the trust res which had been owned by Sophie Franz in her own right, but also upon the remainder interests of her deceased husband's estate. The owners of 3 1/3 of the remainder interests objected to the allowance against their property but the owners of the 6 2/3 interests, then also represented by Buder and Buder, consented to the allowance. On April 1, 1932, an order was entered in the district court denying the commission upon the 3 1/3 shares of the objecting remaindermen but providing "that the said Trustees be allowed a credit for a commission of five per cent upon the value of the remaining 6 2/3 shares of the corpus of the estate in their possession."

In 1939 the five appellants, who are among the owners of the 6 2/3 shares, moved the court to modify the order of April 1, 1932, "so as to vacate * * * that portion * * * which allows the claim of the trustees to a 5 per cent commission upon" the appellants' remainder interests. The trustees filed an answer to the motion, and after a full hearing at which evidence was offered and received an order was entered on December 17, 1940, overruling the motion. The appeal is from this order.

The trust estate was brought under the jurisdiction of the district court in 1924 in the case of E. W. Franz v. G. A. Buder, et al., a case in which jurisdiction is based upon diversity of citizenship. See Franz v. Franz, 8 Cir., 15 F.2d 797. That case is still pending for the purpose at least of administering and closing the trust. In all the proceedings and litigation growing out of the trust the law firm of Buder and Buder represented the trustees and from 1926 until 1935 that firm also represented the appellants. On May 17, 1930, the appellants with the assistance of Buder and Buder, their attorneys, filed a Petition for Distribution of Remainder Interests in which it was stated that they were informed that the trustees under the conveyance of January 30, 1909, had filed, or would file, their petition asking for instructions as to making a distribution of the remainder estate. Among other recitations of the petition it was said: "And your petitioners inform the Court that they have agreed with divers other remaindermen that the said Trustees shall be allowed five per cent (5%) on the Trust Estate as compensation for their services as such trustees, and your petitioners consent to and hereby request that such allowance be made and that the Trustees be permitted to deduct and retain such five per cent (5%) out of their remainder interests aforesaid."

The report of the trustees was filed about a year later, and in it they claimed a credit for a five per cent commission on the remainder estate.

The grounds of the motion to modify the order of April 1, 1932, by vacating the allowance of a commission to the trustees based upon the remainder interests were: (a) That Buder and Buder, while acting as appellants' attorneys, for the purpose of enhancing the trustees' commissions had by fraudulent representations, upon which they relied, procured appellants to sign the Petition for Distribution of May 17, 1930, consenting to the allowance of such commission, and (b) that as a result of the fraud complained of the appellants were deprived of their day in court to contest the allowance of said commission.

The fraudulent representations alleged to have been made were (1) that the trustees were entitled to a five per cent commission based upon the value of the interests of the several remaindermen; (2) that the remaindermen were legally obligated to pay such commission; and (3) that (a) unless appellants followed their advice and agreed to pay the commission the distribution of their remainder interests would be indefinitely postponed, and (b) that upon application of the trustees the court would allow a commission upon the remainder interests in excess of five per cent.

In their answer to the motion appellees admit the historical background alleged in the motion and as defenses plead (1) that the motion is a collateral attack upon the order; (2) that at various times prior to the death of the life tenant appellants had agreed that the trustees should be given a five per cent commission upon their remainder interests; (3) deny the alleged fraudulent representations; and (4) allege laches.

The questions presented upon this appeal for determination are: (1) Does the district court have power to grant the relief asked in appellants' motion? (2) If so, are the appellants guilty of laches so as to deprive them of the right to relief? And (3) if not guilty of laches, are they entitled to relief on the merits?

1. The Power of the District Court. — After appellants had filed their motion to modify the order of April 1, 1932, appellees moved to dismiss and strike it on the ground that the court was without jurisdiction over the subject matter of appellants' motion. Appellees' motion was overruled by the court, and no cross appeal has been taken. The only question which can be raised on this appeal, therefore, is the power of the district court to act in the premises. It is the contention of appellees that the relief asked by appellants' motion is barred by Rule 60(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The motion was not filed within six months after the order sought to be modified was entered. Rule 60(b) provides: "On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, as provided in Section 57 of the Judicial Code, U.S.C., Title 28, § 118, a judgment obtained against a defendant not actually personally notified."

It is argued that this proceeding does not come within the first saving clause of the rule which provides that the rule "does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding * * *" for the reason that this clause applies only to original "actions", and that appellants' motion is not such an action. It is conceded by appellants, as it must be, that the motion to modify is in the nature of an ancillary proceeding. Simkins: Federal Practice, § 812; Thompson v. Schenectady Ry. Co., C.C.N.Y., 124 F. 274, 277, 278; Wallace v. Fiske, 8 Cir., 80 F.2d 897, 901, 902, 107 A.L.R. 726; St. Louis-San Francisco R. Co. v. Byrnes, 8 Cir., 24 F.2d 66; Dickey v. Turner, 6 Cir., 49 F.2d 998; 1 Moore's Federal Practice, pp. 462, 465, 466. In this situation the effect and proper construction of Rule 60(b) must be determined. Here the case in which the motion was made is still pending, and the order sought to be modified relates to the administration of a fund in the custody of the court. The question is, does the court in the administration of justice have power under the circumstances to hear and determine the issue presented by the motion and the answer; or more than six months having elapsed after the order was entered before the motion was filed, does Rule 60(b) deprive the court of such power?

Rule 60(b) is based upon § 473 of the Code of Civil Procedure of California, and the question arises whether we should follow the construction placed upon it by the Supreme Court of that state. The general rule is that when a statute is adopted from another jurisdiction, in substantially the same language, the provisions so adopted are to be construed in the sense in which they were understood at the time in the jurisdiction from which they were taken....

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28 cases
  • Buder v. Fiske, 13595.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 19, 1949
    ...December 17, 1940. An appeal resulted in reversal "with directions to enter an order sustaining appellants' motion." Fiske et al. v. Buder et al., 8 Cir., 125 F.2d 841, 849. About two months after such determination by this Court, the trial court, "of its own motion," entered an order direc......
  • Carr v. District of Columbia, 74-1331
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 18, 1976
    ...Advisory Committee Note to 1946 Amendment of Rule 60(b).76 In re Casco Chem. Co., 335 F.2d 645, 652 (5th Cir. 1964); Fiske v. Buder, 125 F.2d 841, 845 (8th Cir. 1942); Crosby v. Mills, 413 F.2d 1273, 1276 (10th Cir. 1969). The independent action is, however, subject to the equitable doctrin......
  • In re Buder
    • United States
    • United States State Supreme Court of Missouri
    • January 7, 1949
    ...and thus suffered judgment to go against them. Those contentions of those remaindermen were upheld on February 16, 1942, in Fiske v. Buder, 125 F.2d 841. On 23, 1946, the United States District Court at St. Louis wherein this litigation between these parties has been pending since 1924, in ......
  • Gardine v. Cottey, 41427
    • United States
    • United States State Supreme Court of Missouri
    • May 8, 1950
    ......459, 461. A breach of fidelity to a client's interest constitutes constructive fraud. Fiske v. Buder, 8 Cir., 125 F.2d 841; In re Conrad, 340 Mo. 582, 105 S.W.2d 1, 10. .         It ......
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2 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...F.3d 997, 1007 (9th Cir. 2002), Form 7-49 Fisher v. Marubeni Cotton Corp. , 526 F.2d 1338, 1342 (8th Cir. 1975), §4:74.3 Fiske v. Buder, 125 F.2d 841 (8th Cir. 1942), §7:176.2 Fitz, Inc. Handmade Furniture v. Ralph Wilson Plastics Co. , 174 F.R.D. 587 (D.N.J. 1997), §3:12 Fitzgerald v. Alle......
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    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...ground, such as a motion that a judgment has already been satisfied or released, must be made within a “reasonable time.” Fiske v. Buder , 125 F.2d 841 (8th Cir. 1942). See also Federal Land Bank v. Cupples Bros. , 889 F.2d 764, 766 (8th Cir. 1989); Rivera v. Puerto Rico Tel. Co. , 921 F.2d......

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