Seibert v. Minneapolis & St. L. Ry. Co., 8606.

• Decision Date: 28 June 1894
• Docket Number: No. 8606.,8606.
• Citation: 58 Minn. 65
• Parties: HENRY SEIBERT <I>vs.</I> MINNEAPOLIS & ST. LOUIS RY. CO. <I>et al.</I>
• Court: Minnesota Supreme Court

Page 65

58 Minn. 65

HENRY SEIBERTvs.

MINNEAPOLIS & ST. LOUIS RY. CO. et al.

No. 8606.

Supreme Court of Minnesota.

Argued June 12, 1894.

Affirmed June 28, 1894.

Appeal by defendant, the Minneapolis & St. Louis Railway Company, from an order of the District Court of Hennepin County, Seagrave Smith, J., made May 20, 1893, directing William H. Truesdale, receiver, to pay to John M. Shaw, attorney for plaintiff Henry Seibert, $45,000 on account of his services in this action.

The nature of the action and the amount of professional labor performed by the attorney and counsel for the plaintiff Henry Seibert as trustee may be inferred from the reports of other appeals in this action. See Seibert v. Minneapolis & St. L. Ry. Co., 52 Minn. 148, 246; 58 Minn. 39, 53, 58, 69, 72.

Edward S. Isham, Albert E. Clarke, and Isham, Lincoln & Beale, for appellant.

John M. Shaw, Julian T. Davis, and T. S. Wright, for respondent.

CANTY, J.

This is an appeal from an order allowing, and ordering paid to the plaintiff, trustee, in said action, as reasonable charges for attorney's fees, the sum of $45,000, in addition to $5,000 paid prior thereto. This is one branch of the case, the other decisions in which are filed herewith.

The court below, in its conclusions of law, ordered: "Thirteenth. Upon showing made to the court in respect to the reasonable charges for attorneys and counsel employed in this action by the several trustees of the different mortgages described in the complaint, there is allowed to the attorneys and counsel of Henry Seibert, the plaintiff, trustee of the improvement and equipment mortgage, in addition to the sum of $5,000 heretofore allowed and paid to them, the further sum of $45,000; * * * such allowances, if there are sufficient moneys in the hands of the receiver, to be paid upon orders of the court made at or prior to the settlement of the decree in this cause, and shall cover all allowances to attorneys for subsequent proceedings in this court in said cause."

This was dated May 3d, and was filed May 6, 1893. Thereafter, on May 20, 1893, before the entry of judgment, the court below made its order, reciting that "it appearing to us that there are sufficient funds in the hands of said receiver, applicable thereto," ordered the payment of said sum of $45,000 "on account of fees of attorneys and counsel of plaintiff." From this the defendant mortgagor appeals.

1. Appellant contends that the court erred in allowing attorney's fees in excess of the maximum amount allowed by 1878 G. S. ch. 81, § 44, in the foreclosure of real estate mortgages.

We are of the opinion that this statute was never intended to apply to the foreclosure of a railroad mortgage. There are several provisions of statute regulating the foreclosure of real-estate mortgages which it would be hard to apply to the foreclosure of railroad mortgages. A railroad is in part real estate, and in part personal property. It may as well be claimed that the statute governing the foreclosure of mortgages on chattels applies, as the statute governing the foreclosure of mortgages on real estate. In the one case the statute provides for ten days' notice of sale, and that the sale shall be absolute. In the other case the statute provides for six weeks' notice of sale, and that there shall be a year after the sale in which to redeem. It is clear that a railroad, with its personal property and franchises, should be sold as an entirety. But to apply one law to one part of the property, and another law to another part, would dismember the railroad, result in great loss to the parties, and great inconvenience to the public, by reason of the consequent interruption in the public service.

These difficulties presented themselves to the Supreme Court of the United States in Hammock v. Loan and Trust Co., 105 U. S. 77; and it was there held that the statute regulating the right to redeem real estate from the foreclosure of a mortgage thereon applied only to real estate which could be sold as such on...