Seeley v. Hunt

• Decision Date: 02 February 1940
• Docket Number: No. 8966.,8966.
• Citation: 109 F.2d 595
• Parties: SEELEY et al. v. HUNT et al. HUNT et al. v. SEELEY et al.
• Court: U.S. Court of Appeals — Fifth Circuit

109 F.2d 595 (1940)

SEELEY et al. v. HUNT et al. HUNT et al. v. SEELEY et al.

No. 8966.

Circuit Court of Appeals, Fifth Circuit.

February 2, 1940.

T. R. Boone, Harvey Harris, and Kearby Peery, all of Wichita Falls, Tex., for appellants Viola Seeley et al.

H. E. Jackson, Scott Snodgrass, R. G. Hughes, and Chas. Gibbs, all of San Angelo, Tex., and Wm. H. Burges, of El Paso, Tex., for appellees.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

This is the third appeal in this case. See Seeley et al. v. Cornell et al., 5 Cir., 90 F. 2d 562, 566; Seeley et al. v. Cornell et al., 5 Cir., 74 F.2d 353. On the last appeal we directed a "full and complete accounting from the estates of Cornell and Mrs. Cornell * * *".

After the mandate went down the trial court appointed a special master to try the issues and make recommendations to the court. The master heard much evidence and reported it and made findings of fact and recommendations and submitted them to the court. The complainants and respondents made various objections to the findings and recommendations submitted by the special master. The court overruled the objections, approved the master's findings, and entered a decree based upon his report. From the judgment entered the complainants appeal and the respondents cross-appeal.

In their first specification of error the complainants call our attention to a clerical error in addition. The respondents introduced a long list of alleged disbursements and the master disallowed 577 of the items and the court approved his disallowance. The sum of these disallowed items was listed as $109,339.96, whereas the correct total is $135,646.56, a difference of $26,306.60. This error in addition was called to the attention of the trial court before decree was entered. The mistake is apparent on the face of the record and we correct it. Southern Pine Company v. Savannah Trust Company, 5 Cir., 141 F. 802; Kishan Singh v. Carr, 9 Cir., 88 F.2d 672, 679.

Cornell attempted to make a full and complete settlement with his clients, Viola Seeley and others, in April, 1930. The record shows that he did not pay over all that he should have paid and the complainants contend that they should have been decreed simple interest at the rate of six per cent on all monies from the date or dates when such monies should have been paid over to them. The court below allowed interest at six per cent from the date of its decree, August 1, 1938. It was the duty of the respondents to pay over the monies when due, and failing this duty, they are liable for interest on all amounts improperly withheld. Settegast v. Timmins, Tex.Civ.App., 6 S.W.2d 425; McComb v. Frink, 149 U.S. 629, 13 S.Ct. 993, 37 L.Ed. 876.

The appellants' third specification of error is without merit. Cornell was entitled to receive the twenty per cent commission or fee allowed him by the powers of attorney. By these powers the complainants authorized him to preserve the estate of their mother. "As the matter stands on the proof and on the findings, Cornell, their attorney, has obtained for complainants moneys which, if he had not made the settlements in their behalf, they would never have obtained * * *. Cf. Colquitt v. Roxana Petroleum Corporation, supra 5 Cir., 49 F.2d 1025." Seeley, et al. v. Cornell et al., 5 Cir., 90 F.2d 562, 565.

The complainants assign as error the failure of the court to declare a lien in their favor on the assets acquired by the respondents with their money. In paragraph nine of the decree of the trial court the complainants are each awarded a one-tenth interest in certain described properties. In paragraph eleven the remaining four-fifths of the properties are awarded to the respondents. The complainants have been awarded their one-fifth share of the properties and are not entitled to a lien on the three-fifths portion of the properties purchased by Cornell from the other heirs. They are entitled to a lien, however, on the one-fifth interest acquired by virtue of the twenty per cent compensation allowance of the power of attorney, and the same is hereby declared.

By their sixth specification of error the complainants set up various items which they allege should have been disallowed by the master. The thirty seven items total $79,914.32. Appellants contend that the respondents failed to introduce such evidence as would justify the allowance of these items as proper credits. Fact matters which have been determined by a master and approved by a trial court should not be overturned except on the clearest showing of mistake. Levin Brothers v. Davis Manufacturing Co., 8 Cir., 72 F.2d 163; Mason v. United States, 260 U.S. 545, 43 S.Ct. 200, 67 L.Ed. 396. The record supports the allowance of these items and the findings as to them will not be disturbed. The same rule is applicable in disposing of like contentions on the cross-appeal. The respondents allege on cross-appeal that the master and court committed error in failing to allow credit for various alleged expenditures. The master and court felt that the respondents had not met the burden of proof resting upon them and we think the record supports their disallowance of these items with...