Franz v. Buder, 8655-8657.

• Decision Date: 07 February 1930
• Docket Number: No. 8655-8657.,8655-8657.
• Parties: FRANZ v. BUDER et al. MISSISSIPPI VALLEY TRUST CO. v. SAME. NELSON v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

38 F.2d 605 (1930)

FRANZ v. BUDER et al.

MISSISSIPPI VALLEY TRUST CO. v. SAME.

NELSON v. SAME.

Nos. 8655-8657.

Circuit Court of Appeals, Eighth Circuit.

February 7, 1930.

S. Mayner Wallace, of St. Louis, Mo. (Allen McReynolds, of Carthage, Mo., on the brief), for appellant Ehrhardt W. Franz.

Samuel H. Liberman, of St. Louis, Mo. (T. M. Pierce and A. Holt Roudebush, both of St. Louis, Mo., on the brief), for appellant Mississippi Valley Trust Company.

Xenophon P. Wilfley, of St. Louis, Mo. (Fred Williams, of St. Louis, Mo., on the brief), for appellant Earl F. Nelson.

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

Before STONE and GARDNER, Circuit Judges, and MILLER, District Judge.

GARDNER, Circuit Judge.

The above-noted appeals are presented on a single record, but on separate briefs. Each of the appeals is from an order making an allowance of $5,000 to appellant Earl F. Nelson for his services as guardian ad litem and as counsel for certain minor defendants. The order provides that the allowance made for services of Mr. Nelson as guardian ad litem and as counsel be paid by the trustees for Sophie Franz, "out of the funds held in trust by them, said payment to be charged against the trust estate in their hands and for which they shall have credit in their settlements."

A history of the litigation from which this controversy arises would unduly extend this opinion. It is reflected in Franz et al. v. Buder (C. C. A.) 11 F.(2d) 854; Franz v. Franz et al. (C. C. A.) 15 F.(2d) 797; Buder et al. v. Franz et al. (C. C. A.) 27 F. (2d) 101; Franz v. Buder et al. (C. C. A.) 34 F.(2d) 353.

The appellant Mississippi Valley Trust Company is administrator of the estates of Walter G. Franz and Ernest H. Franz, deceased brothers of appellant Ehrhardt W. Franz, and these appellants have an interest in the trust estate of Sophie Franz, in the nature of a remainder interest, which is being administered under the supervision of the lower court. The appellant Earl F. Nelson is guardian ad litem for certain minor heirs whose interests are of a like character to that of the other appellants. The litigation out of which the present issue arose involves the trust estate of Sophie Franz.

On motion for allowance of fees as guardian ad litem, the lower court, after hearing, awarded the appellant Earl F. Nelson $5,000 "as such guardian and counsel" together with additional items of disbursements in the nature of necessary expenses. Mr. Nelson is a lawyer of high standing of the St. Louis bar, and rendered services as counsel for his wards in the various phases of the protracted Franz-Buder litigation, revealed to some extent at least in the above-noted cases. The appellants, other than the appellant Nelson, contend that this allowance on account of services as guardian and counsel should have been taxed against the trustees personally, and they bottom that contention upon the decision of this court in Buder v. Franz, 27 F.(2d) 101, 115. In the course of the opinion in that case, it is among other things said, as to costs: "It is clear, from this record, that this entire controversy has been caused by the trustees. They have consistently and persistently refused to accord the cross-appellants the rights which were due them. They have gone further than this and have and do deny the existence of any and all rights and interest in the cross-appellants. Such course of conduct has compelled this litigation to establish those interests and to enforce and protect the resulting rights. The costs of this action up to the filing of the amended bill of complaint following the former appeal might properly be assessed against complainant and the then interveners because such costs were almost entirely incurred in connection with a mistaken theory of jurisdiction. However, if there has already been any assessment of such costs, we leave such undisturbed. As to all costs accruing with and after the filing of such amended bill, we think they should be assessed against the trustees individually and the decree in that respect modified."

It is the contention of the appellees, on the other hand, that an allowance of compensation for the services of Mr. Nelson as guardian ad litem and as counsel is not taxable as costs, and hence, even conceding that the above-quoted decision is the law of the case, which they do not do, the item is not properly taxable against the trustees individually.

The lower court was of the view that the fees of such guardian ad litem as allowed could not be allowed as costs, but was of the view that as a necessary expenditure, without which the case could not have proceeded, a court of equity had the discretion to charge the expense against the trust estate. Being of this view, the lower court took no notice of the decision of this court in Buder v. Franz from which we have quoted above.

Federal Equity Rule 70 (28 USCA § 723) provides for the appointment of a guardian ad litem for infants and other persons who are under guardianship, subject to such orders as the court or judge may direct for the protection of infants and such other persons as are not sui juris. A guardian ad litem is, in a sense, an officer of the court made necessary by the litigation, and a federal court of equity, without any reference to specific statutory authority, has jurisdiction and authority to award costs. That, as such officer of the court, allowances made him are properly taxable as costs, is sustained by the authorities. Ex parte Peterson, 253 U. S. 300, 40 S. Ct. 543, 64 L. Ed....