Stuart v. R. C. Hoffman & Co

• Decision Date: 11 June 1908
• Citation: 61 S.E. 757,108 Va. 307
• Court: Virginia Supreme Court
• Parties: STUART et al. v. R. C. HOFFMAN & CO. et al.

108 Va. 307

61 S.E. 757

STUART et al.

v.R. C. HOFFMAN & CO. et al.

Supreme Court of Appeals of Virginia.

June 11, 1908.

1. Costs—Persons Liable—Attorneys' Fees —Payment from Fund in Court.

Where parties to a suit, unrepresented by counsel, reap the benefit of services rendered in the progress of a cause, it is proper that those who receive the benefit should be required to make just compensation; but, except in rare instances, the power of the court to require one party to contribute to the fees of counsel of another party must be confined to cases where plaintiff suing in behalf of himself and others of the same class discovers or creates a fund which inures to the common benefit of all, and a fee is properly allowed where the services of counsel have preserved a fund to be shared in with those in like interest and unrepresented by counsel.

2. Same.

An insolvent and its receiver were represented by counsel in suits to establish liens against the insolvent. After a decision in favor of one lien claimant, the attorneys of other lien claimants and of the insolvent and of the receiver appealed, and the lien claimant was defeated. The attorneys of the other claimants sought to recover for their services payable out of the fund secured for the benefit of all creditors. By arrangement between the attorneys of the various parties, the attorneys of the other lien claimants argued the cause on appeal, though the other counsel were ready and able to support the appeal. Held, that the attorneys of the other lien claimants were not entitled to fees payable out of such fund.

Appeal from Chancery Court of Richmond.

Petition by William C. Stuart and others against R. C. Hoffman & Co. and others for the allowance of attorney's fees payable out of a designated fund. From a decree denying relief, petitioners appeal. Affirmed.

Wm. C. Stuart, A. W. Patterson, Geo. Bryan, and S. A. Anderson, for appellants.

Munford, Hunton, Williams & Anderson, for appellees.

KEITH, P. The original bill in this case was filed by certain supply lien creditors of the William R. Trigg Company, shipbuilders, suing on behalf of themselves and all other creditors similarly situated, alleging the insolvency of the defendant company, and asking the appointment of a receiver to take charge of its assets and administer the same under the orders of the court. Thereupon numerous other supply liens were filed, and among them one by the Bucyrus Company, of Milwaukee, Wis. At the time the bill was filed and the receiver appointed, the Trigg Company was engaged in the construction of a number of vessels for the United States, among them a certain sea-going suction dredge, at a cost of $252,375. The Bucyrus Company furnished the Trigg Company, to be used in the construction of this vessel, certain pumping machinery, at a cost of $32,050. The rights of the parties growing out of this contract were the subject of controversy between the receiver and the creditors of the Trigg Com pany and the Bucyrus Company, the latter claiming title to the pumping machinery, and therefore to the whole of its proceeds, which claim was controverted by the receiver and creditors of the Trigg Company. The United States government filed a stipulation in the case, claiming the unfinished vessel and all machinery on hand applicable to its construction, agreeing to protect the creditors of the Trigg Company in any claim they might have in or to the property which was superior to the rights of the government; and thereupon an order was entered, directing the receiver to surrender possession of the unfinished dredge and certain materials applicable thereto, including the pumping machinery in controversy, to the United States, or their authorized agents. Subsequently a balance of $14,266.67 was ascertained to be due from the United States on this pumping machinery, and it was this sum in the hands of the United States government which was the real subject of controversy in the case of Trigg Co. v. Bucyrus Company, reported in 104 Va. 80, 51 S. E. 174, from which the foregoing statement has been condensed.

The chancery court decided in favor of the Bucyrus Company, so that under that decree it took the entire fund in controversy, to wit, $14,266.67. The creditors affected by this decision, desiring to take an appeal from it, applied to the chancellor, who entered an order as follows:

"It appearing to the court that it is to the interest of the creditors of the William R. Trigg Company that said decree should be appealed from, and that it is proper that the expenses connected with said appeal should be borne by the fund in the hands of the receiver or under the control of the court in this cause, it is, on motion of said receiver, ordered that he be, and he hereby is, authorized and directed to take the necessary steps to procure an appeal from said decree at the expense of said fund."

Accordingly a petition for an appeal was prepared on behalf of the Trigg Company and others, and presented to this court. The petition is signed by Bickford & Stuart, Whitehurst & Hughes, J. Jordan Leake, as attorney for the Trigg Company, and Lilburn Myers, receiver, by A. W. Patterson, George Bryan, and T. C. Gordon. Bickford & Stuart seem to have represented the greater number of clients; and the certificate of error required in our practice was signed by William C. Stuart of that firm.

An appeal was allowed; and, the rules of court permitting only two counsel to argue upon each side, the case was presented in this court by Stuart and Bryan. The decree of the chancery court was reversed, the claim of the Bucyrus Company was rejected, and the cause was remanded for further proceedings to be had in accordance with the views expressed in the opinion of this court.

Thereupon Stuart, Bryan,...