De Graffenried v. Breitling

• Decision Date: 22 April 1915
• Docket Number: 569
• Citation: 68 So. 265,192 Ala. 254
• Parties: DE GRAFFENRIED v. BREITLING
• Court: Alabama Supreme Court

68 So. 265

192 Ala. 254

DE GRAFFENRIED v. BREITLING

No. 569

Supreme Court of Alabama

April 22, 1915

Appeal from Law and Equity Court, Marengo County; Edward J. Gilder Judge.

Petition by Edward De Graffenried, as assignee of the City Bank &amp Trust Company, for reference to fix his compensation. Denied for failure to file claim therefor on order obtained by G.T Breitling, as receiver of the City Bank & Trust Company, and petitioner appeals. Reversed and remanded.

Evins &amp Jack, of Greensboro, for appellant.

S.G. Woolf, of Linden, for appellee.

THOMAS J.

The facts of this case are: That on the 9th day of May, 1910, the City Bank & Trust Company, a corporation, being financially embarrassed, made an assignment to Edward De Graffenried, for the benefit of its creditors, of all of its properties. The assignee accepted the trust, filed a petition in the Marengo law and equity court, invoking the jurisdiction of that court over said trust estate and his trusteeship thereof, and alleged that he was then engaged in making a full and complete inventory of the entire trust properties, as provided by section 6058 of the Code of 1907, and, when the same was completed would make due return thereof to the court, as required by the statutes and the orders of the court. The court thereupon took jurisdiction of said trust estate, and Edward De Graffenried became an officer of the court in administering the trust estate for the benefit of the creditors. That before said inventory was completed and filed, the assignee, Edward De Graffenried, arranged for and effected a settlement with the creditors of the bank, procuring their consent for a reorganization of the bank, which was thought to be for the benefit of the creditors and of the stockholders of said City Bank & Trust Company. That thereafter Edward De Graffenried reported this reorganization agreement to the Marengo law and equity court; and said court, sitting in equity, made and entered a decree in said cause, reciting the reorganization of the City Bank & Trust Company, with full protection of the interests of all its creditors and relief of its stockholders from liability to heavy loss, and ordering that Edward De Graffenried, as such assignee, reconvey to the City Bank & Trust Company all of its properties in such capacity held by him, and that said cause was expressly retained on the equity docket of said court for the purposes stated in the decree, as follows, to wit:

"And it appearing further to the court that said City Bank & Trust Company consents to this decree, and it further appearing that no compensation or commission has been received by said Edward De Graffenried for his services as assignee of said City Bank & Trust Company, nor any allowance for counsel fees, to both of which is entitled, and by agreement with the board of directors of the City Bank & Trust Company this matter is to be adjusted later, it is therefore ordered, adjudged, and decreed that this cause shall remain on the docket of this court in order that the court may, at a future date, if it becomes necessary, fix such reasonable compensation as the said Edward De Graffenried is entitled to for acting as assignee for said City Bank & Trust Company, and also such reasonable compensation as should be allowed said Edward De Graffenried for his counsel fees while acting as such assignee of said City Bank & Trust Company."

This decree was entered on July 9, 1910. Pursuant to this decree, the conveyance thus ordered was duly executed by Edward De Graffenried, as assignee and trustee, transferring all the properties so held by him in trust from the bank, to the City Bank & Trust Company, and thereupon the bank resumed business. Later G.T. Breitling was appointed receiver of said bank by the Marengo law and equity court, and he, as such receiver, filed his petition, praying that a day be fixed, after due notice given, for filing claims against the trust estate; and Edward De Graffenried failed to file his claim for commissions before the register of the court, as directed and required of creditors by this order.

The record shows that on July 9, 1910, the Marengo law and equity court entered the decree ordering said assignee to reconvey the trust properties to the bank, and allowing reasonable compensation to Edward De Graffenried, and continuing the cause on the docket for the ascertainment of the amount; that on November 15, 1912, De Graffenried filed his petition in said cause asking that his compensation be ascertained by reference, and that decree thereon, denying the petition, was rendered on February 26, 1914, and that an appeal therefrom was taken to this court on February 26, 1914; that the cases of Edward De Graffenried, as assignee, and G.T. Breitling, as receiver, were pending on the equity docket of the court when the decree requiring claims to be filed with the register within the time required or be forever barred was entered.

It cannot be said that the failure of Edward De Graffenried to present his claim for such allowance, to the register, as required by the order on the petition of G.T. Breitling, was such laches, as that the claim is barred. The property was reconveyed by Edward De Graffenried, as assignee, to the bank, under agreement as to his right to compensation recognized by the bank and by the court. Neither the creditors, existing or subsequent, nor G.T. Breitling, as trustee, acquired a superior right thereto. The lis pendens gave all parties at interest immediate and subsequent...