In re Federal Facilities Realty Trust, 11273

Decision Date22 November 1955
Docket Number11274.,No. 11273,11273
Citation227 F.2d 657
PartiesIn the Matter of FEDERAL FACILITIES REALTY TRUST, etc., Debtor, and National Realty Trust, etc., Debtor, Paul E. DARROW, etc., Appellant, v. Jacob KULP and Myrtle Johnson, etc., Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Urban A. Lavery, Francis Heisler, Chicago, Ill., for appellant.

Walter Wm. Pearson, Walter P. Murphy, Livingston E. Osborne, Stanley A. Kaplan, Chicago, Ill., for appellees.

Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

The facts of this case are fully stated in our two previous opinions. The first is reported at 220 F.2d 495, and the second, filed June 14, 1955, in 227 F.2d 651. In the latter, we adjudged the respondents to the present motion to be in contempt of this court, but reserved consideration of petitioner's prayer for an award of reasonable attorneys' fees. The contempts were purged by orders entered August 12 and September 6, 1955, and consideration of the present motion reserved pending the submission of a claim by petitioner. The cause is before us now on petitioner's motion and proof of claim and the contemnors' responses thereto.

The first question we must consider is whether attorneys' fees should be awarded. All authorities seem to agree that the assessment of expenses and attorney's fees incurred in a civil contempt case against a contemnor is discretionary. The rule to be spelled out from the court decisions is that a party compelled to resort to a civil contempt proceeding to preserve and enforce an adjudicated right is entitled to a decree by way of a fine for injuries actually sustained by him because of the contemptuous act, Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 52 S.Ct. 238, 76 L.Ed. 389; Worden v. Searls, 121 U.S. 14, 26, 7 S.Ct. 814, 30 L.Ed. 853; Norstrom v. Wahl, 7 Cir., 41 F.2d 910; Rivers v. Miller, 5 Cir., 112 F.2d 439, 443; cf. Brooks v. United States, 9 Cir., 119 F.2d 636, 646-647; 17 C.J.S., Contempt, §§ 96, 127; 12 Am.Jur. Contempt § 79, which may include, in the discretion of the court, an award of reasonable attorney's fees. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-428, 43 S.Ct. 458, 67 L.Ed. 719, affirming, 7 Cir., 281 F. 488.

Thus our initial question is whether this is a case in which equity requires that such fees be a part of petitioner's recovery. We think that such an allowance is not proper in the present circumstances. Distribution of the fund was made pursuant to direction of the bankruptcy court and in reliance on its order which set aside a supersedeas previously allowed. The contemnors assert that they relied also on the action of this court in denying to petitioner leave to file a petition for a writ of mandamus. While our determination in that respect was only that we would not entertain an extraordinary proceeding to test the validity of Judge Campbell's order, nevertheless, as we noted in our opinion of June...

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12 cases
  • Bata v. Central-Penn Nat. Bank of Philadelphia
    • United States
    • Pennsylvania Supreme Court
    • 28 June 1972
    ... ... on obligations incurred in the administration of a trust, 25 provides in Section 271A: ... 'A person to whom the ... 's denial of his petition to reopen to the Swiss Federal Court (Public Law Section). Appellant also filed a ... 1965); In re Federal Facilities Realty Trust, 227 F.2d 657, 658 (7th Cir. 1955); West Texas ... ...
  • Bata v. Central-Penn Nat. Bank of Philadelphia
    • United States
    • Pennsylvania Supreme Court
    • 28 June 1972
    ... ... of a trust, [ 25 ] provides in Section 271A: ... 'A person to whom ... Federal Court (Public Law Section). Appellant also filed a ... 1965); In re Federal Facilities Realty Trust, 227 F.2d 657, ... 658 (7th Cir. 1955); West ... ...
  • United States v. Lynd
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 7 July 1964
    ... ... etc., 246 F.2d 867, 870 (3rd Cir., 1957); In re Federal Facilities Realty Trust, 227 F.2d 657, 658, 55 A.L.R.2d 977 ... ...
  • Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 26 June 1986
    ... ... was troubled by the fact that Western had obtained federal trademark and service mark registration of the word ... See, e.g., Northside Realty Associates v. United States, 605 F.2d 1348, 1356 n. 23 (5th ... , 592 F.2d 126 (2d Cir.1979); and In re Federal Facilities" Realty Trust, 227 F.2d 657 (7th Cir.1955) ...      \xC2" ... ...
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