Gray v. Hopkins-Carter Hardware Co.

• Decision Date: 31 May 1929
• Docket Number: No. 5515.,5515.
• Citation: 32 F.2d 876
• Parties: GRAY v. HOPKINS-CARTER HARDWARE CO. et al. REESE v. SAME.
• Court: U.S. Court of Appeals — Fifth Circuit

32 F.2d 876 (1929)

GRAY v. HOPKINS-CARTER HARDWARE CO. et al.

REESE v. SAME.

No. 5515.

Circuit Court of Appeals, Fifth Circuit.

May 31, 1929.

H. H. Taylor and Geo. D. Ford, both of Miami, Fla., for appellant.

Lloyd C. Hooks, of Miami, Fla., for appellees Hopkins-Carter Hardware Co., Coconut Grove Bt. Wks., Biscayne Tent & Awn. Co., Phillips Hdw. Co., and Elco Works.

Warren S. Reese, of Miami, Fla., for cross-appellant.

J. C. Morcock, of Miami, Fla., for appellee and cross-appellee J. Frank Knorr.

Lloyd C. Hooks, of Miami, Fla., for other cross-appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

This is a contest over the distribution of proceeds derived from the sale of the gas yacht Lois. The amount realized at the sale, $7,600, was not sufficient to pay in full liens asserted against the yacht. Libels were filed by Norman Sweeting, J. Frank Knorr, the Hopkins-Carter Hardware Company, Coconut Grove Boat Works, Biscayne Tent & Awning Company, and the Elco Works. The libel of Sweeting was partly for seaman's wages and partly for necessary supplies, and the libels of the others above named were for necessary supplies and material. The yacht was claimed by its owner, who secured its release from the various libels by giving bonds in accordance with the provisions of 28 USCA § 754, and Admiralty Rule 12, and filed answers denying the averments of the several libels. The aggregate of the amounts claimed by these libels, to secure payment of which bonds had been given, was approximately $5,400, of which about $3,500 was claimed by the Elco Works. While the issues thus raised remained undetermined, stipulations were entered into between the owner and the above-named libelants by which it was agreed that the bonds for the release of the yacht should be canceled and the sureties thereon discharged, and that such libelants should have final decrees for the amounts claimed by them. The surety in the Elco Works case had been required to strengthen his bond by a pledge of collateral security which it was provided should be released. The stipulations were all made subject to the approval of the court, and on the same day the court entered the final decrees that had been agreed upon.

It was under these decrees that the sale was made. At the time the stipulations for the release of the bonds and the sureties thereon were entered into, the yacht had been seized and was being held by the marshal under a libel filed by Eric Breding for seaman's wages, and continued to be so held up to the time of the sale, in accordance with a provision contained in each of the stipulations. Within a few days after the sale, Breding obtained a decree for $106.65, the amount of his claim, and Cyrus W. Gray and the Phillips Hardware Company, by petitions of intervention under admiralty rule 42, each claimed an interest in the proceeds in the registry of the court. Gray claimed under a mortgage on the yacht for $5,900 which he had acquired prior to its release on the several bonds. He conceded that the claims of Breding, Knorr, the Hopkins-Carter Hardware Company, Coconut Grove Boat Works, and Biscayne Tent & Awning Company were all entitled to priority over his claim, and prayed that, after those libelants were paid in full, the balance of the fund in court be next applied to the satisfaction of his mortgage lien. Gray's petition made no reference to the Sweeting libel, but it attacked the libel of the Elco Works on the ground that the lien therein asserted against the yacht had been lost as a result of the release of the yacht on bond, and was not restored by virtue of the subsequent agreement with the owner and the consent decree. The Phillips Hardware Company's claim was for $271.75, and was based on material supplied to the yacht. The lien created thereby was first in point of time; it was acquired more than a year before the first libel was filed, about 18 months before the date of Gray's mortgage, and more than 2 years before the filing of this petition of intervention, which disclosed no excuse for the delay. The claims of Gray and the Phillips Hardware Company were sustained by undisputed evidence before the commissioner, to whom all pending claims were referred by order of court for a report as to the validity and priority or rank of the several liens asserted against the yacht.

The commissioner filed his report in obedience to this order. After he had done so, but before final decree, Warren S. Reese filed an intervening petition, by which he sought to establish a lien for a reasonable attorney's fee upon the fund in the registry of the court. Reese alleged that, as proctor for the owner, he filed answers to several of the libels and prepared bonds for release of the yacht. It appears from his petition that he had ceased to represent the owner before the compromise settlement was made which...