Lazarus, Michel & Lazarus v. Harding

• Decision Date: 26 April 1915
• Docket Number: 2596.
• Citation: 223 F. 50
• Parties: LAZARUS, MICHEL & LAZARUS v. HARDING et al.
• Court: U.S. Court of Appeals — Fifth Circuit

223 F. 50

LAZARUS, MICHEL & LAZARUS v. HARDING et al.

No. 2596.

United States Court of Appeals, Fifth Circuit.

April 26, 1915

Rehearing Denied May 28, 1915.

Girault Farrar, of New Orleans, La, for appellants and petitioners.

Percy Benners & Burr, of Birmingham, Ala., and Dinkelspiel, Hart &amp Davy, of New Orleans, La., for appellees.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

PER CURIAM.

The questions involved are properly here upon the petition to revise, and the appeal is therefore dismissed.

The fee of $1,000 allowed the petitioners was, under the facts of the case, reasonable, and we are not disposed to disturb the judgment on that account. The lower court erred in ordering the petitioners to deliver to the trustees in bankruptcy the two drafts of the Carmichael Company and the Corn Products Refining Company. But the error is without prejudice to the petitioners, since they are given due credit for the amount of the drafts, leaving a balance due by them of $1,863.42.

Finding no reversible error in the record, the petition to revise is denied.

PARDEE Circuit Judge.

In the summary proceedings instituted by the trustees the District Court had jurisdiction to fix and determine petitioners' compensation for professional services rendered and to be rendered to the bankrupt. See Bankr. Act July 1, 1898, c 541, Sec. 60d, 30 Stat. 562 (Comp. St. 1913, Sec. 9644). But in such summary proceedings the court was entirely without jurisdiction to deal as it did with the alleged preference to the petitioners of the check or draft of the Corn Products Refining Company, which transaction appears by the undisputed facts to have been, not only fair and proper, but without profit to the petitioners and for the benefit of the bankrupt's estate.

'That all title to said check for $1,125 is divested out of respondents, Lazarus, Michel & Lazarus, and that said respondents will also restore and deliver to the said trustees the said check of the Corn Products Refining Company of the face value of $1,125; and said respondents are hereby restrained and enjoined from collecting said check of $1,125 from said Corn Products Refining Company and from all other persons.'

While this court says 'this part of the decree is without prejudice to the petitioners,' in my opinion it is so clearly erroneous for want of jurisdiction that, if for no other reason, the decree should be revised in...