Little v. St. Louis Union Trust Co.

• Decision Date: 18 January 1910
• Citation: 146 Mo. App. 580,124 S.W. 600
• Parties: LITTLE et al. v. ST. LOUIS UNION TRUST CO. et al.
• Court: Missouri Court of Appeals

124 S.W. 600

146 Mo. App. 580

LITTLE et al. v. ST. LOUIS UNION TRUST CO. et al.

St. Louis Court of Appeals. Missouri.

January 18, 1910.

JUDGMENT (§ 314)—AMENDMENT—COSTS AND FEES.

Plaintiffs sued defendant, claiming that it held funds belonging to them. Defendant filed an answer and counterclaim in the nature of a bill of interpleader, disclaiming any interest in the fund, alleging that it was claimed by another, and asking that the claimants to the fund be interpleaded. The court rendered a decree forbidding further proceedings against defendant, and discharging it from all liability, but not dismissing it as a party, and ordering that it be allowed costs and counsel fees to be determined later. This decree was affirmed on appeal by the Supreme Court. Held that the trial court had power, at a term subsequent to that at which the decree of interpleader was rendered, to allow defendant its expenses and attorney's fees.

Reynolds, P. J., dissenting.

Appeal from St. Louis Circuit Court; Matt G. Reynolds and Wm. M. Kinsey, Judges.

Action by William C. Little and others against the St. Louis Union Trust Company, in which the National Bank of Commerce was interpleaded. From a judgment awarding defendant costs and fees in the proceeding, the National Bank of Commerce appeals. Affirmed.

This appeal grew out of a suit instituted in 1902 in the circuit court of the city of St. Louis by plaintiffs, in behalf of themselves and other stockholders of the Kansas &amp Texas Coal Company, against the St. Louis Union Trust Company, wherein plaintiffs asserted they and other stockholders of said coal company were entitled to a fund of $34,870 held by the St. Louis Union Trust Company. In response to the suit the latter company filed an answer and counterclaim in the nature of a bill of interpleader, disclaiming any interest in the fund, alleging it was claimed as against plaintiffs by the National Bank of Commerce of St. Louis, and asking to be permitted to deposit the money in court, and for an order compelling plaintiffs and the Bank of Commerce to interplead for the money, and that the trust company be discharged with an allowance for its costs, including a reasonable fee to its counsel. The trust company paid the fund into court, but its right to maintain a bill of interpleader and an answer in the nature of a cross-bill, to compel the rival claimants of the fund to interplead for it, was contested by the Bank of Commerce on the theory the bank's right to the fund was so evident as to exclude the case from the equitable jurisdiction of bills of interpleader. Said court held otherwise, and by a decree entered November 17, 1903, ordered and adjudged the plaintiffs and the Bank of Commerce interplead for the fund, and that said parties be restrained from maintaining or prosecuting further proceedings against the trust company; that said company be discharged from all liability to plaintiffs and all other parties to the suit in respect of the fund, and the trust company be allowed its costs, paid or incurred, to be taxed by the clerk, a reasonable fee to its counsel for answering and prosecuting its answer and cross-bill, said fee to be fixed and ordered by the court thereafter, and that said costs, including the fee, be paid by the clerk to the trust company out of the fund in the hands of the clerk. As the language of the decree is significant, we will copy it, omitting the caption and an irrelevant paragraph:

"And now at this term, upon consideration thereof, and the court being fully advised in the premises, doth find the issues joined upon the counterclaim or cross-bill in favor of the defendant St. Louis Union Trust Company. It is therefore ordered, adjudged, and decreed that the plaintiffs and all the persons and corporations heretofore by order of the court made defendants to said counterclaim or cross-bill of St. Louis Union Trust Company be and appear in this court in this cause, on or before the first Monday of February, 1904, and then and there interplead with each other severally, or in such groups or associations as they may be advised, and set forth their respective rights and claims to, upon, and in respect of, the certain fund of $34,870, mentioned in the said counterclaim or cross-bill, and heretofore, by leave of court, deposited by St. Louis Union Trust Company with the clerk, and now in his hands.

"It is further ordered, adjudged, and decreed that St. Louis Union Trust Company be, and it is hereby, allowed its costs, paid or incurred by it herein, and to be taxed by the clerk, and also that it be, and it is hereby, allowed a reasonable fee to its counsel for making its answer and bringing and prosecuting its counterclaim or cross-bill herein. Said fee to be hereafter fixed and ordered by the court, and all said costs, including said fee, to be paid by the clerk to St. Louis Union Trust Company out of the said fund in the hands of the clerk.

"It is further ordered, adjudged and decreed that the defendant be, and it is hereby, discharged from all liability to the plaintiff, and to all the other parties to said counterclaim or cross-bill or to this suit, in respect of the said fund and of every part thereof, and in respect of the six hundred and thirty-four shares (634) shares of the capital stock of the Kansas & Texas Coal Company, standing in the name of W. P. Heath, treasurer of said Kansas & Texas Coal Company, and in respect of the certain certificate or receipt of St. Louis Union Trust Company given the said Heath, treasurer, on the 7th day of March, 1902, for said 634 shares.

"It is further ordered, adjudged, and decreed that the plaintiffs and all other parties to this suit, and each and every one of them, be and they are hereby enjoined and restrained from further prosecuting or bringing any suits or suit against the said St. Louis Union Trust Company for recovery of the said fund or in respect thereof, or upon the aforesaid certificate or receipt or in respect thereof."

An appeal was taken by the Bank of Commerce from that decree to the Supreme Court, where it came on to be heard at the April term, 1906, and was affirmed (94 S. W. 890); the mandate of the Supreme Court, omitting the title of the cause, being as follows: "Now at this day come again the parties aforesaid, by their respective attorneys, and the court here being now sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment aforesaid, in form aforesaid, by the said circuit court of the city of St. Louis rendered, be in all things affirmed, and stand in full force and effect, and that the said respondent recover against the said appellant its costs and charges herein expended, and have therefor execution." After said mandate had been sent down to the circuit court, and at the October term, 1906, the trust company filed in said court a motion for an allowance of costs and fees, averring the controversy, as far as concerned the right of the trust company to interplead therein, had been finally determined by the Supreme Court of the state, motion for rehearing denied, mandate filed with the clerk of the circuit court, and averring further the trust company had expended in cash, in the course of the litigation, as court costs and for other items of expense, $371.74, for which it asked reimbursement; that it had at all times been represented by counsel, who were entitled to a reasonable fee for their services, and praying an order of the court that expenses and attorney's fees in a reasonable sum be taxed as costs in the proceeding and paid out of the fund deposited with the clerk. The National Bank of Commerce contested the application of the trust company for an allowance to cover its expenses and counsel fees, on the ground the circuit court had lost jurisdiction of the proceeding by rendering a final decree at the December term, 1903, and could not therefore alter, modify, or amend said final judgment or decree so as to allow costs and attorney's fees. The application for the allowance was submitted on an agreement that if the trust company was entitled to have its costs taxed, it would be able to show it had paid out items of expense amounting to $371.74; that the amounts of the several items were reasonable, and $1,500 would be a reasonable fee for services rendered by its counsel in the progress of the case. This agreement as to the facts was made by the Bank of Commerce with the reservation that it should not prejudice in any manner the contention of the bank against the power of the court to allow the fees and expenses at a term subsequent to the one when final judgment had been entered. The circuit court sustained the application of the trust company, allowing it $1,500 counsel fees and $371.74 as its costs, all to be taxed in the proceeding, and the National Bank of Commerce appealed from the order or judgment to this court. A full statement of the facts of the main controversy, including the contention of the bank against the right of the trust company to compel an interpleading, will be found in the report of the decision by the Supreme Court. Little v. Union Trust Co., 197 Mo. 281, 94 S. W. 890. Suffice to say said court held it was a proper case for interpleader, and the bank was wrong in its position. The effect of the judgment and mandate of the Supreme Court was to affirm in all things the previous judgment of the circuit court in favor of the trust company, and to leave the case standing in the latter tribunal for further proceedings between the plaintiffs and the Bank of Commerce as competitive claimants of the fund.

Edw. I. D'Arcy and Geo. L. Edwards, for appellant. Rowell & Zumbalen, Jos. S. Laurie, and Chaplin & Blayney, for respondents.

GOODE, J. (after stating the facts as above).

As already said, the position of the Bank of Commerce as appellant in this branch of the case, raises only one question, whether the circuit court had power, after the term in which the...