Seymour v. Du Bois

• Decision Date: 18 April 1906
• Docket Number: 17.
• Parties: SEYMOUR v. DU BOIS.
• Court: U.S. District Court — Western District of Pennsylvania

145 F. 1003

SEYMOUR v. DU BOIS.

No. 17.

United States Circuit Court, W.D. Pennsylvania.

April 18, 1906

Judson Harmon, Frederick Seymour, and Lyon, McKee & Mitchell, for plaintiffs.

W. C Arnold and Thos. H. Murray, for defendant.

BUFFINGTON District Judge.

This is an action of assumpsit brought by John S. Seymour, a citizen of the state of New York, against John E. Du Bois, a citizen of the state of Pennsylvania, personally and as executor of John Du Bois. From the pleadings and proofs in the case it appears that a bill in equity for infringement of a patent had been brought by John Du Bois against the mayor et al. of the city of New York in the Circuit Court for the Southern District of New York. After the death of John Du Bois, John E. Du Bois, his sole devisee and executor of his will, was substituted as complainant. In March, 1899, following, John E. Du Bois employed as counsel to conduct said cause, H C Thurston, and through him John S. Seymour, the plaintiff, his partner Eugene M. Harmon (they being associated in the law business as Seymour & Harmon) and Judson Harmon. Their employment was to prosecute said cause to completion upon a certain contingent fee, John E. Du Bois making advancement for certain outlays and expenses. In pursuance of said employment counsel conducted the cause until April, 26, 1901, when Mr. Du Bois presented a petition to the court setting forth he and counsel could not act in harmony, praying leave to discharge them, and to appoint others in their stead. On June 25, 1901, the petition and the answer filed thereto, were referred to one of the standing masters to report what compensation was reasonable for said counsel. He reported on November 21, 1902, and the exceptions filed to his report were overruled. On November 24, 1902, the court confirmed the report, and made an order, fixing the fees hereafter quoted at length. This order was appealed from by John E. Du Bois to the Circuit Court of Appeals, which court affirmed the same. On return of the mandate of affirmance the Circuit Court on November 21, 1904, made an order as follows:

'Ordered, adjudged, and decreed that said decree be, and the same is, hereby affirmed, with costs to be fixed at $34.20, and that said respondents have execution therefor and that such other and further proceedings be had in this cause as according to right and justice and the laws of the United States, ought to be had, the said appeal notwithstanding.'

Subsequent thereto Eugene Harmon died, leaving John S. Seymour the liquidating and surviving partner of the firm of Seymour & Harmon. Henry C. Johnson also died, and his administrator assigned his share of the award to John S. Seymour as did also Judson Harmon his share. None of these parties were or are citizens of Pennsylvania. On July 10, 1905, the said John S. Seymour brought suit in his own name against John E. Du Bois as above noted to recover the entire amount of said decree; the defendant entered a plea in bar, and on trial, a verdict was rendered for the plaintiff for the full amount of the claim, subject to the opinion of the court upon the points submitted by defendant. Judgment is now moved for by plaintiff on the verdict and by the defendant, non obstante veredicto on the reserved points.

In disposing of these questions the case virtually resolves itself into three questions: First, is the order of the Circuit Court for the Southern District of New York such a final and definitive one that suit can be maintained thereon? Second, is the record of that case so certified as to be admissible in evidence? Third, can the plaintiff maintain this action? Turning to the first question, we note that on April 23, 1901, John E. Du Bois presented a petition to that court setting forth that Henry C. Johnson was his counsel of record in said cause; that Johnson himself employed Seymour & Harmon, who became associated with him in the conduct of the case but not by agreement with Du Bois; that certain disagreements had arisen between Du Bois and Johnson and Seymour & Harmon, and that there was a lack of harmony and confidence such as should exist between client and counsel. The petition prayed for leave to discharge Johnson and that the court make an order fixing 'such fees to date to which the said Johnson may be entitled, if anything, in the event of the recovery by your complainant upon final proceedings. ' To this petition an answer was made by Johnson, Seymour & Harmon and Judson Harmon, all of whom contended that Seymour & Harmon and Judson Harmon had been employed by complainant acting through Mr. Eccles and Mr. Johnson. They all averred their readiness to prosecute the cause, but expressed their consent to retire therefrom and permit the substitution of other counsel if provision were made for their compensation. This petition was heard, and June 25, 1901, the following order was made:

'Ordered, adjudged and decreed as follows, viz.: That this cause is referred to Arthur H. Masten, Esq., one of the standing examiners of this court to take testimony and report promptly what is fair and reasonable amount of counsel fees (including disbursements) for all services of complainant's solicitor and counsel to date. Upon the coming in of said report, order of substitution will be made, conditional upon the payment of said fees. Such payment, however, shall be without prejudice to any additional claim if any which solicitor or counsel may have by reason of the breaking of any contract for further services.'

Under this reference the master made report on August 19, 1902, exceptions thereto were overruled and on November 24, 1902, an order of confirmation was entered as follows:

'Ordered and adjudged that the fair and reasonable amount of counsel fees, including disbursements for all services of complainant's solicitor and counsel to June 25, 1901, the date of the order of reference, is as follows:

'To Judson Harmon, $1,000. To Henry C. Johnson, $2,500. To Seymour & Harmon, $7,500, and $1,450 incurred as disbursements by complainant's authority in the employment of Edward E. Quimby as a patent expert; and the order of substitution is made conditional upon the payment of said sums, with interest on each item from June 25, 1901; it is further ordered and adjudged, that there is due from complainant to Seymour & Harmon the sum of $674.50, paid by them for account of master's and stenographer's fees in this proceeding; it is further ordered and adjudged, that upon payment of the foregoing sums the complainant may substitute other solicitors and counsel in the place of his present solicitors and counsel.'

This order the complainant, 'considering himself aggrieved by the final decree entered on the 24th day of November, 1902,' appealed therefrom to the Circuit Court of Appeals, and in his appeal specified as error as follows, inter alia, viz.:

'(9) The court erred in adjudging that a fair and reasonable amount of counsel fees (including disbursements) for all services of Judson Harmon to June 25, 1901, is $1,000; (10) the court erred in adjudging that a fair and reasonable amount of counsel fees (including disbursements) for all services of Henry C. Johnson to June 25, 1901, is $2,500; (11) the court erred in adjudging that a fair and reasonable amount of counsel fees (including disbursements) for all services of John S. Seymour, Frederick Seymour, and Eugene M. Harmon, composing the firm of Seymour & Harmon, is $7,500 and $1,450 incurred as disbursements; * * * (13) the court erred in adjudging that there is due from the appellant to the said Seymour & Harmon the sum of $674.50, or any sum paid by

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