In re Stotts

• Decision Date: 06 April 1899
• Docket Number: 514.
• Parties: In re STOTTS.
• Court: U.S. District Court — Southern District of Iowa

93 F. 438

In re STOTTS.

No. 514.

United States District Court, S.D. Iowa, Central Division.

April 6, 1899

J. D & R. G. Howard and Dowell & Parrish, for bankrupt.

WOOLSON District Judge.

While this case was pending before Referee F. M. Davenport, there was allowed as attorney's fees to counsel representing the bankrupt $150, and also an attorney's fees to the same counsel representing the trustee $125. After the resignation of Referee Davenport, said counsel presented to his successor, William R. Lee, a motion for an order on the trustee for payment of these allowances; no order for payment having been entered. The motion was denied by the referee for the reason, as certified by him, that 'the claims were allowed at an ex parte hearing, and that the creditors had no notice thereof or opportunity for objecting thereto ' At the instance of said counsel, this matter has been certified for review by the referee. No objection to the allowances above stated has been filed by any creditor. I assume that the allowance of these attorney's fees was made under section 64, par. 'b,' of the present bankruptcy statute. And, in so far as these allowances represent the ascertained value of the services rendered by counsel, I must assume the amounts to be correct. If correct, they should be paid, unless notice to creditors is a prerequisite, or the court finds, as the same are presented, that their payment is unjust, so as to require action against such payment.

In a decision lately handed down (In re Beck, Ex parte O'Connell, 92 F. 889) in the Eastern division of this district it was decided that no allowance would be made in voluntary cases for attorney's fees, in favor of counsel for the bankrupt, for services rendered for the bankrupt. But that in so far as such services, though nominally rendered for the bankrupt, were actually for the preservation of the estate, as, for instance, conserving the same pending the period between adjudication and first meeting of creditors such fees might properly be allowed. It is now urged that the court will presume that the referee acted within this ruling, and affirm his action. But the order of allowance, as certified to this court, is not in accord with such presumption. Besides, on the oral presentation of this matter under review, the fact was developed that the claim of attorney's fees, as presented to the referee, went far beyond services for conserving the estate, although counsel affirmed a large part of such...