Monaghan v. Hill
| Citation | 140 F.2d 31 |
| Decision Date | 21 January 1944 |
| Docket Number | No. 10408.,10408. |
| Parties | MONAGHAN v. HILL. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Henry S. McCluskey, of Phoenix, Ariz., for appellant.
Louis B. Whitney, of Phoenix, Ariz., for appellee.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
An appeal has been taken from an order of the District Court allowing appellant $12,500 for legal services rendered in connection with a class suit.
Early in 1932 Elizabeth G. Monaghan, an attorney-at-law in Arizona, was employed by several creditors of the Intermountain Building & Loan Association, a Utah corporation, to investigate the financial condition of the Association. Appellant was at the time doing some work in the law office of Thomas W. Nealon, who agreed to assist her in matters concerning the Association but who refused to be associated as an attorney of record until June of 1933. There was an understanding between the two that any fees recovered for their work should be divided equally.
Suit was brought against the Association in the names of the creditors, in behalf of themselves and all others similarly situated, to establish their equitable liens and to procure the appointment of a receiver for the purpose of preserving the assets of the corporation. The suit was instituted in the federal court for the District of Arizona. Mrs. Monaghan and Nealon conducted extensive investigations of the affairs of the Association including detailed examinations of innumerable public records in Arizona and Utah. They attended trials in state courts against allied corporations in order to secure information concerning the Association. They interviewed clients, other attorneys, and representatives of the federal government. They, with the help of James A. Smith, a certified public accountant, studied and analyzed copies of all reports filed by the Association in the office of the Bank Commissioner of Utah between 1921 and 1932. The evidence collected by Smith under the legal direction of Mrs. Monaghan and Nealon made possible the establishment of a prima facie case to obtain the relief prayed for in the class suit.
The attorneys carried on an exhaustive research of the law and studied the statutes of six states applicable to the case. Many novel and difficult questions of law were involved. A large number of pleadings and briefs were prepared, including briefs on appeal to the United States Circuit Court of Appeals and on petition for writ of certiorari to the Supreme Court of the United States. The major portion of the time of both attorneys for more than three and a half years was devoted to the class suit even though the outcome was extremely doubtful and though their compensation depended wholly upon their success.
Although the efforts of the two attorneys were vigorously resisted in every way possible, the results of the litigation were highly satisfactory. A receiver was appointed by the federal District Court to handle the assets of the corporation. Gross assets valued at more than two million dollars passed into the hands of the receiver; probably all would have been dissipated by the Association had it not been for the work of the two attorneys mentioned. Almost three thousand creditors of the Association elected to avail themselves of the benefits of the suit.
In 1937 the two attorneys filed separate petitions for an allowance of fees. Mrs. Monaghan prayed for reasonable compensation for the services of both, for $301.65 for traveling expenses necessarily incurred by her in connection with the litigation, and for $10,000 for the expense of the certified public accountant James A. Smith. She attached an affidavit of Smith in which he outlined the vast amount of work done by him on the case and valued his services "conservatively" at $10,000. Nealon prayed for reasonable compensation for his own services only and for $1,330.40 for the expenses, such as printing of briefs and costs of certified copies, itemized in his petition.
Appellant's petition and her associate's petition were consolidated for hearing before the United States District Judge, and evidence concerning the value of services rendered and the expenses incurred was presented. Nealon introduced the opinions of four experienced attorneys as to a reasonable fee. Three thought $200,000 a fair and moderate fee for the conduct of the entire litigation; the fourth stated that Nealon alone was entitled to at least $100,000. There may be some question as to whether or not the testimony offered specifically upon behalf of Nealon could properly be considered as to Mrs. Monaghan's petition, but the question is more academic than real, for Mrs. Monaghan and three lawyer-witnesses declared that $150,000, or $75,000 to each attorney, would be a reasonable award. It should be noted that seven attorneys estimated the reasonable value of the total services rendered as from $200,000 down to $150,000. No testimony of a lower sum was introduced. The court made two orders, each decreeing that reasonable compensation for each petitioner was $12,500 less $7,500 already paid by order of the court, and also ordered that Nealon be reimbursed in the sum of $1,330.40 for expenses.
On March 5, 1943, the trial judge made special findings of fact and conclusions of law, which were filed nunc pro tunc as of December 7, 1942, the date the orders were filed. Mrs. Monaghan filed her notice of appeal on the same day the findings and conclusions were filed and just one day before the time to perfect her appeal would have expired.
Appellee moves to dismiss the appeal or to affirm the order of the District Court on the ground that appellant made no objections and took no exceptions to the order or to the findings of fact and conclusions of law of the trial court, submitted no proposed findings and conclusions in lieu of those adopted, and requested no amendments to the same. The motion is denied. Appellant outlined her objections in her statement of points on appeal. That she made no prior mention of them is immaterial under the provisions of Rule 52 of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c: (a) * * *" (b) "* * * When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the...
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