Merchants' Bank v. Crysler

• Citation: 67 F. 388
• Decision Date: 03 April 1895
• Docket Number: 521.
• Parties: MERCHANTS' BANK OF ST. JOSEPH (FIRST NATIONAL BANK OF HANNIBAL et al., Interveners) v. CRYSLER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

67 F. 388

MERCHANTS' BANK OF ST. JOSEPH (FIRST NATIONAL BANK OF HANNIBAL et al., Interveners) v. CRYSLER et al.

No. 521.

United States Court of Appeals, Eighth Circuit.

April 3, 1895

C. A Mosman (J. D. Strong, on the brief), for appellants.

James H. Harkless and E. J. Sherlock, filed brief for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This is an appeal from a final order in an equity case allowing Charles S. Crysler, one of the appellees, $5,000 as an attorney's fee, in addition to amounts previously allowed, for services by him rendered to the receiver appointed in said case. The allowance was made under the following circumstances: In the month of June, 1893, a bill was filed by Ezra V. Snively against the Loomis Coal Company to establish and to enforce a vendor's lien against the property of the coal company, and at the instance of the complainant, James A. Bovard, who has since died, was appointed receiver of all its property and effects consisting of coal lands and mines, a store, and the usual tools and appliances for operating coal mines. By an order made in the case on June 30, 1893, the receiver was authorized to employ said Charles S. Crysler, the appellee as his attorney, to represent the interests of the trust estate in the receiver's charge. Subsequently, on March 3, 1894, the present appellants, the Merchants' Bank of St. Joseph and the First National Bank of Hannibal, Mo., who held mortgages on the coal lands in question to the amount of about $40,000, including interest, were allowed to intervene in the cause for the protection of their interests. On April 16, 1894, a decree was entered by consent of all parties in interest, which provided, in substance, that the property in the hands of the receiver should be sold at public sale by a commissioner appointed for that purpose, and that the proceeds of the sale should be distributed in the manner following: First, to the payment of all costs and expenses in the case, including compensation to the receiver and his attorney, and such indebtedness as the receiver had lawfully contracted while in control of the property; second, to the payment of the interveners' mortgages; third, to the payment of a judgment lien on a portion of the lands held by the appellant herein, John Vaughn; fourth, to the payment of the vendor's lien held by the complainant, Snively; the residue of the fund, if any, to be paid to the Loomis Coal Company. On the last day of the same term, to wit, on June 2, 1894, on an oral motion made by the receiver's attorney, without notice to the appellants, the circuit court allowed the receiver and his attorney each $5,000 as compensation, in addition to the compensation theretofore allowed to them, and at the same time it approved certain lengthy reports that had been filed by the receiver. Previous to making this order, and on December 5, 1893, the court had made an order allowing the receiver to pay to himself, out of the funds in his hands, $250 per month, as compensation, from the date of his appointment, and to pay to his attorney, said Charles S. Crysler, $100 per month from the date of his appointment, and to continue such payments to himself and his attorney until further order. The appellants herein made a motion on June 11, 1894, which was duly served on the appellees, to have the court vacate the final allowance in the sum of $5,000 that was made to said Crysler on June 2, 1894, alleging as a ground for said motion that the allowance was irregularly made without notice; that the interveners were interested in the amount of said allowance; and that they desired to be heard in relation thereto. This motion was denied by the circuit court on July 2, 1894, and the interveners prayed for an appeal, which was allowed.

The question does not arise upon this appeal as to whether the allowance made to the appellee Crysler was reasonable in amount or otherwise. No testimony was offered on that point. When the motion to vacate the allowance and to grant a rehearing was heard, the interveners insisted that the allowance was irregularly made; that their interests were vitally affected by the amount of...