Mortimer v. Pacific States Sav. & Loan Co.

Citation141 P.2d 552,62 Nev. 142
Decision Date01 October 1943
Docket Number3395.
PartiesMORTIMER, Building and Loan Commissioner of California, v. PACIFIC STATES SAVINGS & LOAN CO. Appeal of BADT.
CourtSupreme Court of Nevada

Appeal from Fourth Judicial District Court, 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. From adverse orders, Milton B. Badt appeals, and plaintiff moves to dismiss the appeal or to affirm the orders.

Motion denied.

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

Milton B. Badt, in pro. per.

DUCKER Justice.

This is a motion for an order dismissing the appeal, or affirming the orders appealed from, made by plaintiff. Some explanatory statements are advisable.

From May 9, 1940, to October 15, 1942, George Russell, Jr., was receiver of the Pacific States Savings & Loan Company, a corporation, doing business in the State of Nevada under the fictitious name of Allied Land & Livestock Co., and appellant was attorney for the receiver during that period. The receiver died on October 15, 1942. Prior to his death appellant had been paid under orders of the court in allowances to the receiver for compensation to appellant for his services to the receiver, the sum of $5,000. On the 28th of October, 1942, the court entered an order appointing E. A Clawson as receiver in the place and stead of George Russell Jr., who qualified as such on October 30, 1942; and thereafter, and on the 4th day of November, 1942, upon request of Clawson the court appointed Milton J. Reinhart attorney for the receiver, and in its order, the order appointing appellant as such attorney was terminated. Thereafter the judge of the court, feeling that appellant was entitled to further compensation, suggested that if he would prepare an order the court would fix it. Appellant stated that it was the duty of the receiver to petition the court to fix his compensation and give him an opportunity to be heard on it. The judge spoke to Clawson who replied: "I don't feel it is any of my affair because I had nothing to do with employing Mr. Badt and know nothing of his services or what he has been paid and don't feel inclined to do it."

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 ($2,500.00) as their full and entire compensation for services rendered herein. ***"

The receiver sent appellant a check for $2,500, which he refused to accept, returning it to Clawson. The appellant then noticed a motion to vacate the order, contending that it was inadvertently 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. At the time noticed for the hearing of the motion the appellant appeared in propria persona, and the receiver and defendant appeared by attorneys. The court entered an order denying the motion and 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 present proof to show that the attorney fee heretofore fixed and allowed was unjust and unreasonable. It was also ordered that notice of the above order be given by mailing a copy thereof by the clerk to all interested parties.

At that time an extensive hearing was had at which the receiver, the plaintiff and defendant were represented by attorneys, and appellant by himself. Appellant testified in great detail as to the services rendered by him to the former receiver and also testified as to the inadequacy of the fee of $2,500 allowed him by the court. He was cross-examined at length by the attorney for plaintiff. He was also cross-examined at some length by the court. Three prominent attorneys of the state testified in behalf of appellant and in turn were cross-examined by the attorney for the plaintiff. No evidence was introduced by the plaintiff or the receiver. One witness was called and examined by the court and...

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