Saulsbury v. Lady Ensley Coal, Iron & Railroad Co.

• Decision Date: 16 April 1896
• Citation: 110 Ala. 585,20 So. 72
• Court: Alabama Supreme Court
• Parties: SAULSBURY v. LADY ENSLEY COAL, IRON & RAILROAD CO. [1]

20 So. 72

110 Ala. 585

SAULSBURY v. LADY ENSLEY COAL, IRON & RAILROAD CO. ^[1]

Supreme Court of Alabama

April 16, 1896

Appeal from chancery court, Walker county; Thomas Cobbs, Chancellor.

In an action against the Lady Ensley Coal Iron & Railroad Company W. K. Saulsbury was appointed receiver. From an order sustaining exceptions to the report of a register ascertaining the amount due as solicitor's fees for services rendered to the receiver, the receiver appeals. Modified.

The appeal is prosecuted by W. K. Saulsbury, the former receiver of the Lady Ensley Coal, Iron & Railroad Company, from a decree of the chancellor sustaining exceptions to the report of the register of a reference held to ascertain the amount due as solicitor's fees for services properly rendered by the solicitor to the receiver pending his receivership. The circumstances leading up to the appointment of the appellant W. K. Saulsbury, as receiver, and the facts attendant thereon, are sufficiently shown in the opinion. In response to a decree of the chancellor that, upon John J. Moore filing with the register an itemized statement under oath of the services he rendered as solicitor in this case for W. K Saulsbury, as receiver, showing the value of each and all of said services, the register will hold a reference, and ascertain what services were so rendered by Moore, and the value of the same, the said John J. Moore, on March 24, 1894 filed in the office of the register the following statement of account of his services, which was duly verified by oath of said Moore before a notary public:

W. K Saulsbury, Receiver of Lady Ensley Coal, Iron & Railroad Co., to John J. Moore, Dr.

1893.

April 19.

1. To retainer fee ..................................................... $1,500

2. Trip to Horse Creek, Jasper, Russellville, and Sheffield, to

assist the said receiver to get possession of all property of said

company, immediately after his appointment, and advising him in

regard thereto ....................................................... 500 00

3. Legal services in getting up and drafting form for appointment of

agents of receiver at various divisions of company at Jasper, Horse

Creek, Bessie Mines, Rusellville, and Sheffield, Ala., and advice

in reference thereto .................................................. 50 00

4. Legal services in drafting bills of sale and contracts for sales

of iron, and advice in reference thereto ............................. 100 00

5. Fee for representing receiver on hearing of appeal from order of

register appointing him, which appeal was heard in Jasper and

Birmingham, Ala.; also, preparing 57 affidavits and filing same,

and advising said receiver in and about said appeal .................. 500 00

6. To legal services in drafting receiver's bonds, and assisting him

in securing and filing same, and advising him in reference thereto .... 50 00

7. To legal services rendered said receiver in and about preparation,

revision, and filing inventories of the property taken in charge by

the receiver at Birmingham, Bessie Mines, Horse Creek, Jasper,

Sheffield, and Russellville, Ala., and advising him in reference

thereto .............................................................. 300 00

8. To fee for presenting petition to chanceller for order, and

obtaining order thereon, for payment of laborers at Horse Creek,

Ala ................................................................... 50 00

9. To fee for presenting petition to chancellor, and obtaining order

thereon, for payment of laborers at Russellville ...................... 50 00

10. To fee for presenting petition to chancellor, and obtaining order

thereon, for payment of laborers at Sheffield ......................... 50 00

11. To fee for legal services rendered said receiver in trips to

Cincinnati, Ohio, whereby the payment of some $8,000 by Matthew

Addy & Co. for iron sold them by the receiver was accomplished, and

advice ............................................................... 800 00

12. To fee for legal services in preparing, arranging, supervising,

presenting, and filing said receiver's accounts for a final

settlement, and advising him with reference thereto .................. 300 00

13. To legal services in drafting and presenting to chancellor, in

vacation, petition of receiver for decree of reference, and

obtaining said decree thereon directing register to state

receiver's accounts ................................................... 50 00

14. To legal services rendered said receiver in attending said

reference and taking testimony thereat before the register ........... 250 00

15. To fee for appearing for and representing said receiver on final

hearing of receivership proceedings .................................. 500 00

16. To fee for obtaining final decree confirming his accounts and

final discharge of said receiver ..................................... 100 00

17. To cash expended, hotel bills and traveling expenses, exclusive

of trip to Cincinnati ................................................. 50 00

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Total .......................................................... $5,200 After the hearing of the evidence upon this reference, the register in chancery made, on May 2, 1894, a report ascertaining that said John J. Moore was entitled to fees and compensation, amounting in the aggregate to $2,275, for services as solicitor of W. K. Saulsbury, as receiver. The report of the register was as follows:

"I find that said J. J. Moore rendered the services to said former receiver, W. K. Saulsbury, as shown by his itemized account filed in the cause on 24th day of March, 1894, except the tenth item of said account. The burden of proof fails to show that this item of service was performed, and hence no compensation will be allowed for the same. See testimony of W. K. Saulsbury taken on second reference, page 3, top of page. The sixteenth item of said account being for the identical service charged for in fifteenth item, no compensation will be allowed for it; the decree therein mentioned being written by Chancellor W. H. Tayloe, and being the same decree rendered on final receivership proceedings. It is the opinion of the register that a general retainer or counsel fee should be allowed J. J. Moore in this cause, but that that retainer or counsel fee should cover all matters of advice and counsel to the receiver, and therefore no compensation should be allowed for items 2, 3, 4, 6, 7, and 12 of said account; all services therein mentioned, except advice of counsel, not being strictly legal services, and the bills of sale and written appointment of agents not being shown to be necessary. Giving due weight to the opinion of each witness examined on the reference in this cause, and taking into consideration their experience, respectively, in the practice and in the matter of fees in similar cases to this, the register feels warranted in finding and reporting the following as reasonable fees and compensation to be allowed said J. J. Moore for services as solicitor as aforesaid, for said W. K. Saulsbury, former receiver, viz.:

Item 1. Retainer or counsel fees .......... $1,000

Item 5. Representing receiver on

appeal, etc.............................. 300

Item 8 and 9. Petitions to chan-

cellor for order to pay

laborers at Horse Creek

and Russellville ......................... 75

Item 11. Trip to Cincinnati, Ohio ............ 400

Item 13. Petition to chancellor for

decree of reference ...................... 50

Item 14. Attending reference and

taking testimony ........................ 200

Item 15. Representing receiver in

court on final settle-

ment .................................... 200

Item 17. Cash expended, hotel

bills, etc................................ 50

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Total fees and com-

pensation ........................ $2,275 00"

On May 4, 1894, exceptions were filed to this report of the register. The first exception was to the allowance by the register of the sum in the aggregate. The second was directed to the allowance of item 1 of the report. The third was to the allowance of item 5. The fourth was to the allowance of items 8 and 9. The fifth was to the allowance of item 11. The sixth was to the allowance of item 13. The seventh was to the allowance of item 14. The eighth was to the allowance of item 15. The ninth was to the allowance of item 17. In each of these exceptions reference is made to the testimony of the many witnesses examined on the reference before the register. The facts pertaining to each of these exceptions and the several items of fees allowed the solicitor, are sufficiently shown in the opinion, which renders it unnecessary to set out at length the voluminous testimony of the several witnesses examined before the register on the reference held. On October 9, 1894, upon the submission of the cause upon the register's report and the exceptions thereto, the chancellor rendered the following decree: "This cause coming on to be heard, was submitted upon the register's report and the exceptions thereto, and was argued by counsel; and, being duly considered, it is ordered, adjudged, and decreed that the exceptions numbered 4, 6, 7, 8, and 9 are sustained in part and overruled in part. The court is of the opinion that the sum of $300 should be allowed in the aggregate on those vouchers. All the other exceptions are well taken, and are sustained. Henry v. Henry (Ala.) 15 So. 921. The report of the register is corrected by the allowance of the sum of $300, in lieu of the amount reported, and, as corrected, the report is ratified and confirmed." From this decree W. K. Saulsbury, the former receiver, appeals, and assigns the rendition thereof as...