Peck v. Richter

• Decision Date: 10 September 1914
• Docket Number: 141.
• Citation: 217 F. 880
• Parties: PECK et al. v. RICHTER.
• Court: U.S. Court of Appeals — Eighth Circuit

217 F. 880

PECK et al. v. RICHTER.

No. 141.

United States Court of Appeals, Eighth Circuit.

September 10, 1914

L. E Waggoner and Joe Kirby, both of Sioux Falls, S.D., for petitioners.

Robert F. Riemer, of Sioux Falls, S.D., for respondent.

Before SANBORN and SMITH, Circuit Judges, and TRIEBER, District Judge.

SMITH Circuit Judge.

The respondent, Joseph C. Richter, was adjudged a voluntary bankrupt August 1, 1913, and the petitioner, Miles E. Peck was on August 18, 1913, chosen and qualified as trustee of the bankrupt estate. The bankrupt filed three separate and distinct claims against the estate.

(1) The first of these claims was for cutting and shocking 27 acres of wheat and 107 acres of oats belonging to the bankrupt estate after the petition in bankruptcy was filed, about August 1, 1913, and before the qualification of the trustee which was about August 18, 1913.

(2) The second claim was for stacking the same wheat and oats and furnishing board for the men, after the trustee was appointed and at his request.

(3) The third claim was for taking care of the horses, cattle, and hogs belonging to the bankrupt estate after the filing of the petition but both before and after the appointment of the trustee.

The referee allowed only $15 on the first claim for binder twine and rejected the balance of that claim and all of the second and third claims. The bankrupt applied for review by the judge under section 38 of the Bankruptcy Act and General Orders No. 27 (89 F. xi, 32 C.C.A. xxvii). The trustee sought to have the proceedings for review dismissed because he had paid and the bankrupt had accepted the $15 allowed him; but this application was denied, and the trustee seeks in this proceeding to revise that action of the court. These claims were all for expenses of administering the estate under section 62 of the Bankruptcy Act, and were not for debts which may be proved under section 63 of the Bankruptcy Act. In other words, the claims were all in the nature of costs, and not in the nature of debts.

It is the contention of the petitioners that the bankrupt, having taken the $15 awarded him by the referee, should now be held to have waived the right of review and be estopped to contend that the adjudication of the claims should be set aside. His position will be conceded as a general proposition. That is, it will be conceded that the rule is well established that a party who claims the benefit of an order or judgment in a case, or accepts the benefits or receives the advantages thereof, shall be afterwards precluded from asking that the order or judgment be revised or set aside. This is a general rule and is well established, but it is subject to several exceptions. It will be sufficient to point out one of these:

'When Judgment Settles Distinct Controversies. When a judgment or decree settles two or more distinct controversies, the acceptance of a sum of money, to which appellant is declared to be entitled by one portion of the judgment or decree, does not estop him from appealing from another and independent adjudication therein.' 2 Cyc. 654.

This is fully sustained by decisions of this court (Darragh v. H. Wetter Manufg. Co., 78 F. 7, 23 C.C.A. 609; In re Letson, 157 F. 78, 84 C.C.A. 582); and by the Supreme Court (Gilfillan v. McKee, 159 U.S. 303, 16 Sup.Ct. 6, 40 L.Ed. 161; Embry v. Palmer, 107 U.S. 3, 2 Sup.Ct. 25, 27 L.Ed. 346); and by the Circuit Court of Appeals of the Seventh Circuit (Worthington v. Beeman, 91 F. 232, 33 C.C.A. 475); and by numerous state courts (Tyler v. Shea, 4 N.D. 377, 61 N.W. 468, 50 Am.St.Rep. 660; Wishek v. Hammond, 10 N.D. 72, 84 N.W. 587; Goodlett v. Investment Co., 94 Cal. 297, 29 P. 505; Fiedler v. Howard, 99 Wis. 388, 75 N.W. 163, 67 Am.St.Rep. 865). In Byram v. Polk County, 76 Iowa, 75, 40 N.W. 102, it was held by the Supreme Court of Iowa that acceptance by an officer of a specific item of his account for fees awarded him by the district court is not a waiver of his right of appeal as to other items.

The additional allowance was made on the second and third claims filed by the bankrupt, and no more was allowed him under the first claim than the $15 for binding twine. If an additional amount had been allowed under the first claim, a somewhat close question would be presented; but we have no doubt that the bankrupt still retained the right to a revision of the refusal of the referee to allow him anything on his second and third claims, and the application to revise the action of the District Court in this regard must be denied.

The application for review was determined by the District Court on December 4, 1913. The decision was as follows:

'1. That the bankrupt be allowed a reasonable compensation for all services rendered or caused to be rendered for the trustee herein after his appointment for stacking the said grain herein mentioned, and for taking care or having taken care of the said live stock belonging to the bankrupt estate from the time of the appointment of the trustee to the 17th day of October, A.D. 1913, inclusive, for the reason that the bankrupt after the appointment of the trustee does not owe the creditors the duty to take care of the bankrupt estate for the trustee without compensation, and said services were performed at the request of the trustee.

'2. That this matter be referred back to the said Hon. Henry A. Miller, referee in bankruptcy, in the above-entitled matter, for the purpose of taking proof or evidence as to the reasonable value of the services rendered by the bankrupt or caused to be rendered as aforesaid.

'3. That the

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