In re Roadarmour

• Decision Date: 17 March 1910
• Docket Number: 2,003.
• Citation: 177 F. 379
• Parties: In re ROADARMOUR.
• Court: U.S. Court of Appeals — Sixth Circuit

177 F. 379

In re ROADARMOUR.

No. 2,003.

United States Court of Appeals, Sixth Circuit.

March 17, 1910

A. L Roadarmour, pro se.

Before SEVERENS, WARRINGTON, and KNAPPEN, Circuit Judges.

KNAPPEN Circuit Judge.

The petitioner seeks to review the action of the District Court in disallowing his claim for legal services in successfully resisting the allowance of certain claims presented against the bankrupt's estate. The record discloses that petitioner was not employed by the trustee to make such opposition, but that he was employed in that behalf by certain of the creditors of the bankrupt. It is alleged in the petition for review that petitioner's employment by creditors was had after the trustee in bankruptcy had refused to resist the allowance of the claims in question.

There is nothing in the record presented to us sustaining this allegation. No finding of facts was made, either by the referee, whose order of disallowance was reviewed by the District Judge, or by the judge. The record attached to the petition for review is limited to the order of the referee the order of the District Court, and the opinion of the District Judge, which contains the statement that the claims defeated aggregated a considerable amount and that petitioner's services 'were valuable and resulted in the disallowance of such claims. ' The District Judge based his disallowance of petitioner's claim upon the entire absence of authority to allow it 'under circumstances such as are here presented.'

Petitioner discusses the question in his brief as if the refusal of the trustee in bankruptcy to oppose the allowance of the claims in question, and petitioner's employment in consequence of such refusal, were established by the record. But such is not the case. The allegation in the petition for review filed in this court is no evidence of such fact; nor is the allegation referred to put in issue. We are confined to the record attached to the petition or sent up in connection with the proceedings to review. It is clear that upon the record presented petitioner's claim was rightly disallowed. There is no express statutory authority for the allowance asked. Section 64b, cl. 3, of the bankrupt act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 563 (U.S. Comp. St. 1901, p 3447))8 permits 'one reasonable attorney's fee for professional services actually rendered, irrespective of the number of attorneys employed, to the petitioning creditors in involuntary cases, to the bankrupt in involuntary cases while performing the duties herein described, and to the bankrupt in voluntary cases, as the court may allow. ' The trustee and receiver are allowed to employ attorneys, whose compensation is part of the expense of the trusteeship or receivership. Bankr. Act, Sec. 62; Gen. Order No. 35, par. 3 (32 C.C.A. xxxiv, 89 F. xiii). See, also, In re McKenna (D.C.) 137 F. 611, 615.

Section 64b2 of the bankrupt act provides that when property of the bankrupt transferred or sold by him shall have been recovered for the benefit of the estate of the bankrupt by the efforts and at the expense of one or more creditors, the reasonable expenses of such...