Mortimer v. Pacific States Sav. & Loan Co.

• Decision Date: 03 February 1944
• Docket Number: 3395.
• Citation: 145 P.2d 733,62 Nev. 142
• Parties: MORTIMER, Building & Loan Commissioner of State of California, v. PACIFIC STATES SAVINGS & LOAN CO. Appeal of BADT.
• Court: Nevada Supreme Court

145 P.2d 733

62 Nev. 142

MORTIMER, Building & Loan Commissioner of State of California, v. PACIFIC STATES SAVINGS & LOAN CO.

Appeal of BADT.

No. 3395.

Supreme Court of Nevada

February 3, 1944

Appeal from District Court, Fourth District, Elko County; James Dysart, Judge.

Action by Frank C. Mortimer, as Building and Loan Commissioner of the State of California, against Pacific States Savings & Loan Company, a corporation, doing business in the State of Nevada under the fictitious name and style of Allied Land & Livestock Company. The District Court on its own motion ordered defendant's successor receiver to pay to Milton B. Badt, for the firm of Milton B. Badt, and Orville R Wilson $2,500 as compensation for services rendered as attorneys for a predecessor receiver, and denied Milton B Badt's motion to vacate the prior order and his application for an allowance of further fees, and he appeals.

Orders reversed, with direction.

TABER J., dissenting.

Robert W. Kenny, Atty. Gen., and I. M. Peckham, Leonore D. Underwood, and Perry H. Taft, Deputy Attys. Gen., for plaintiff.

Morley Griswold, of Reno, and Milton J. Reinhart, of Elko, for receiver E. A. Clawson.

Milton B. Badt, of Elko, in pro. per.

DUCKER, Justice.

This is an appeal taken by an attorney for a receiver from an order allowing fees to the attorney, and from an order denying his motion to vacate same. See Mortimer v. Pacific States Savings & Loan Co., Nev., 141 P.2d 552.

On May 9, 1940, George B. Russell, Jr., was appointed receiver of the property of the defendant land and livestock company in this state. On the day following, appellant, at the request of the receiver, was appointed his attorney and continued to act in that capacity until the receiver died on Oct. 15 1942. On October 28, 1942, E. A. Clawson was appointed receiver of the defendant, and at his request an attorney, other than appellant, was appointed for the new receiver. The court, on December 5, 1940, by its written order, allowed appellant the sum of $2,000 in full for his services to the receiver from the date of his appointment to and including that month, which was paid by the receiver to appellant. On December 9, 1941, pursuant to an application by the receiver for increased compensation to himself and for payment of attorney fees, the court entered a minute order denying receiver's application for increased compensation. As to the payment of attorney fees, the following minute order was entered: "It is hereby ordered that the receiver pay Messrs Badt & Wilson, attorneys representing the receiver, the sum of $3000, out of the funds now in his hands, for the calendar year of 1941, and the court reserves the right to fix any future fees for services performed in the future."

On the following day a formal written order was filed, which recited: "Now, therefore, the court being fully advised as to the law and the facts in the premises, and good cause appearing therefor, it is hereby ordered: 'That there is hereby allowed and said receiver is hereby ordered to pay out of the funds in his hands, to Messrs Milton B. Badt and Orville R. Wilson, as compensation for their services as attorneys for the receiver, for the calendar year 1941, the sum of $3000 subject to the right hereby reserved by said court, to consider the matter of any additional allowance at the close of the receivership, or when proper occasion should arise."

Appellant's employment having terminated with the death of Receiver Russell, the judge suggested to appellant that if he would prepare an order the court would fix his compensation in full. Appellant stated that it was the duty of the receiver to petition the court to fix his compensation and give him (appellant) an opportunity to be heard on it. The judge endeavored to get the receiver to do this but he declined to do so. Whereupon the court, on December 11, 1942, entered an order which, among other things, contained the following:

"Therefore, upon the Court's own motion, it is Hereby Ordered, Adjudged and Decreed, as follows, to-wit:

1. That E. A. Clawson, the receiver herein, be and he is hereby authorized, empowered and directed to pay to Milton B. Badt for the firm of Milton B. Badt and Orville R. Wilson, the sum of Two Thousand Five Hundred Dollars ($2500.00) as their full and entire unpaid compensation for services rendered herein."

The receiver sent appellant a check for the amount, which he refused to accept, returning it to sender. The appellant then noticed a motion to vacate the order on the ground that it was inadvertently made, in that it was made without hearing, and without notice and without opportunity to any of the parties to be heard in connection therewith, and that the amount allowed was inadequate to compensate him for his services. A hearing was had and the court entered an order denying the motion. It made a further order that the 29th day of January, 1943 at 10 a.m. be fixed as the time for the hearing of the determination of reasonable attorney fees in the premises, at which time appellant could offer proof to show that the attorney fee heretofore fixed and allowed was unjust and unreasonable. The hearing which followed was quite extensive. Appellant testified in considerable detail as to the services rendered by him to the former receiver, and also testified as to the inadequacy of the compensation allowed him by the court. Three prominent attorneys of the state appeared as witnesses for appellant and testified as to the value of his services. No testimony was introduced by the plaintiff or receiver. One witness was called and examined by the court. The motion was submitted and taken under advisement. A written opinion was rendered and filed by the court, wherein it was ordered: "For the reasons given, it is hereby ordered that the said order entered by this court on December 11, 1942, will stand as entered."

The appeal is from that part of the order of December 11, 1942, which orders the sum of $2,500 to be paid to appellant as full and entire unpaid compensation for services rendered, and from the order of February 27, 1943, denying appellant's motion to vacate said portion of said order of December 11, 1942, and denying appellant's application for an allowance of further attorney fees.

The main question is the adequacy of appellant's compensation. There is a dispute between him and opposing counsel as to the period for which the former may claim for services rendered. Appellant conceded that the first payment he received of $2,000 was in full for his employment from the date of his appointment to and including December 1940, but contends that his compensation, unpaid, should be allowed for the year 1941 and to and including October 15, 1942, the date of the receiver's death. Opposing counsel contend that the record shows that appellant received compensation in full for 1941. This is predicated upon the claim that the minute order of December 9, 1941, is controlling as against the formal written order of the following day, and that appellant, having failed to take an appeal from said minute order, is concluded by it.

The formal written order signed by the court, must, we think, supersede the minute order entered by the clerk. State v. Bell, 34 Wash. 185, 75 P. 641; Hanley v. Most, 9 Wash.2d 429, 115 P.2d 951, 118 P.2d 946; Gould v. Austin,

52 Wash. 457, 100 P. 1029, 1030. In the above case the court said: "The rule in this state is that, where there is a conflict between the clerk's minute entry of the court's proceedings and the formal written judgment signed by the judge, the latter will control, and be deemed the actual judgment of the court. This was held by us in the case of State ex rel. Jensen v. Bell, 34 Wash. 185, 75 P. 641, where we prohibited the trial judge from enforcing an order as recorded in the clerk's minutes instead of the order as recorded in the formal written entry signed by him; the orders as recorded being conflicting."

Citing the above case, and holding to the same effect, is McFadden v. McFadden, 22 Ariz. 246, 196 P. 452-453, wherein the court said: "Moreover, we think, in conformity with the rule in at least one jurisdiction, that where there is a conflict between the entry made by the clerk in the minutes and the solemn judgment of the court, the terms of the latter should be given force and effect, rather than of the former."

It has been urged that the formal written order of December 10, 1941, is ambiguous; that therefore the minute order should govern, and that the appellant, having taken no appeal from it, is concluded by it. The formal order is not ambiguous. It states in unequivocal language: "The right reserved *** by said court to consider the matter of any additional allowance at the close of the receivership, or when proper occasion should arise." The language refers to the past as well as the future. If the trial court did not consider it so, why did it permit appellant to offer proof as to the whole period of his employment? Why did it not restrict his proof to 1942? If it did not wish to make a change in the minute order why did it sign the latter order at all? Courts are not given to making idle orders.

Neither the attorney for the plaintiff nor the attorney for the receiver took the position that the later order is ambiguous. They placed their contention squarely on the proposition that the minute order was controlling. The formal written order stands unimpeached. We hold that it is not a final order and that it prevails over the minute order.

We now come to the question of the adequacy of the amount allowed by the court for the appellant's services to the receiver. Counsel for the plaintiff or receiver introduced no evidence or testimony in rebuttal of appellant's case...