Wehrs v. Sullivan

• Decision Date: 02 June 1916
• Docket Number: No. 17305.,17305.
• Parties: WEHRS v. SULLIVAN et al. (KING & KING, Intervener).
• Court: Missouri Supreme Court

187 S.W. 825

WEHRS v. SULLIVAN et al. (KING & KING, Intervener).

No. 17305.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

On Rehearing, July 3, 1916.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Suit by Herman H. Wehrs against William B. Sullivan, in which William L. Watkins was appointed receiver, and King & King intervened and made claim. Interveners appeal from order denying new trial after denial of their claim. Dismissed.

King & King, of St. Louis (Marshall & Henderson, of St. Louis, of counsel), for appellants. Jones, Hocker, Hawes & Angert, of St. Louis, for receiver. J. E. Watkins, of Chillicothe, amicus curiæ.

BROWN, C.

The respondent William L. Watkins was receiver appointed by the circuit court for St. Louis county in a suit pending in that court in which Herman L. Wehrs was plaintiff and William B. Sullivan, doing business by the name and style of Home Cooperative Company of the City of St. Louis, Mo., was defendant. The appellants are lawyers, and filed their intervening petition in that cause in which they alleged that they had performed many and valuable professional services in that capacity, in collecting assets of the defendant Home Co-operative Company to divide among its "contract holders" (of whom plaintiff was one and sued as the representative of all), and its creditors. The claim of the interveners was referred to a referee appointed by the court, who found for the receiver. This report was afterward set aside, and the cause was heard by the court by agreement upon evidence taken by the referee. On June 12, 1911, the court entered its findings and judgment which, after a full review of the facts, which were summarized in the statements that the services of interveners were of no real or appreciable value to said estate, contract holders, or creditors, and are found by the court to have been without any value, concluded:

"And the court, as a matter of law and equity, upon the facts found, as aforesaid, finds and concludes that the claimants are not entitled to recover for any services rendered by them as attorneys for plaintiff in this cause, and their claim for such services is denied."

The appellants "thereafter, within four days, at the same term, to wit, on the 16th of June, 1911, * * * filed their motion for a new trial," which occupies about 35 printed pages of the abstract, contains 38 elaborate exceptions to the findings of fact, and closes as follows:

"Wherefore, in consideration of the premises, your exceptors pray the court to set aside the findings of fact and conclusions of law and decision made herein and will make to your exceptors a reasonable allowance, whether partial or entire, for the services to which they may be entitled as attorneys for the plaintiffs in said suit."

This motion was continued to the next or September term of the trial court, when it was taken up and overruled on November 20, 1911, by the following order:

"Herman H. Wehrs, Plaintiff, v. William B. Sullivan, doing business as Home Co-operative Co., Defendant. The motion for rehearing in the matter of solicitors' fees of Messrs. King & King heretofore filed and submitted herein, having been duly and fully considered is now by the court hereby overruled."

At the same term on January 3, 1912, an appeal was granted by the following order:

"Herman H. Wehrs, Plaintiff, v. William B. Sullivan, doing business as Home Co-operative Co., Defendant. Come now Attorneys King & King, appellants herein and tender and file their affidavit for an appeal, and pray an appeal from the order of the court herein on November 20, 1911, overruling the motion of said attorneys King & King for a rehearing in the matter of solicitors' fees, to the Supreme Court of Missouri; and it appearing to the court that said appellants have deposited the sum of ten ($10.00) dollars, docket fee required by law, it is thereupon ordered that the said appeal be and it is hereby granted to the Supreme Court of Missouri. Ordered further by the court on motion that said appellants King & King be and they are hereby given sixty (60) days from this date to file their bill of exceptions in this cause."

Leave was granted during the same term to file bill of exceptions, which was done. On August 20, 1912, the short transcript consisting of the two orders of court above quoted was filed in this court for the purpose of perfecting the appeal. No copy of the judgment of disallowance was placed before this court until October 5, 1915, when it was included in...