Amos v. Burwell & Sibley

Davis, J. In this case the appellees, as attorneys for complainants in a chancery proceeding in the Circuit Court, were employed to have wound up the business of the Guardian Trust Company and the City Trust Company in Miami, Florida. They filed a bill for that purpose and a receiver was appointed for both companies. The Comptroller of the State intervened and was successful in securing a writ of prohibition under which he secured possession of the *551 Guardian Trust Company as against the court receiver. See State ex rel. Landis, Attorney General, v. Circuit Court for Eleventh Judicial Circuit, 102 Fla. 112, 135 Sou. Rep. 866, 870, 877. In Lewis v. Gaillard, 70 Fla. 172, 69 South. Rep. 797, this Court held: “Where counsel has been employed to' obtain or create a fund for the joint benefit of both parties, his fees, if he prevails, not if he loses, may be paid out of the funds; but where the interests of the parties are adverse, only legal taxable costs can be allowed. ’5 In all proceedings in the court below subsequent to' the Comptroller’s intervention, the interests of the complainants in the Circuit Court were adverse to the asserted power of the Comptroller, so only legal costs can be allowed out of the trust estate as to' the steps in the litigation subsequent to the Comptroller’s intervention. Por services rendered in .bringing the bill of complaint and in having a receiver appointed for the Guardian Trust Company prior to action by the Comptroller the appellees are entitled to a reasonable fee for their services out of the trust estate, because to that extent they were successful in the litigation as between the complainant and the original defendant, and the suit was for the benefit of a class of persons having an interest in the preservation of the trust estate. * The Chancellor awarded a fee of $2500.00 for such services. Upon the record before us we cannot say such fee was so' excessive as to warrant a reversal of the order allowing the same, although it appears to be out of line *552 with those heretofore approved by us as reasonable for a like service. It is not clear that in fixing the fee at such an amount the Chancellor allowed any compensation for complainants’ counsel fo'r his services rendered in the subsequent adverse litigation with the Comptroller. This litigation was unsuccessful in so far as the Guardian Trust Company was concerned and had the Chancellor allowed anything for such services, such allowance would have been erroneous. We must presume that the amount of the fee was fixed with reference to the services rendered by the counsel for the complainants in procuring the appointment of a receiver and having the trust estate preserved pending the assertion of the right-to it by the Comptroller. That being so, it does not appear that there is included in the amount allowed any allowance of attorneys fees for the unsuccessful adverse services of the appellees in seeking to secure a judicial administration of the assets of the Guardian Trust Company as against the Comptroller. The appeal in this Court being from the order of the Court dated October 15, 1931, allowing $2,500.00 attorneys fees to be paid out of the assets of the Guardian Trust Company to Burwell & Sibley, the appellees, as attorneys for the complainant in the Court below, and it not appearing that such allowance was erroneous under the authority we have heretofore cited, the decree appealed from should be affirmed and it is so ordered. Affirmed. Bufoed, C.J., and Whitfield, and Tebbell, J.J., concur. Ellis, J., dissents. Footnotes [*] The trust company had attempted voluntary liquidation under Section 6144 C. G. L., 4201 R. G. S., before the suit in equity was filed. Upon direct appeal to this Court’s order appointing a Receiver and another order refusing to discharge him were affirmed by us, thereby conclusively establishing the propriety and legality of the initial equity suit concerning which the fees involved were claimed and allowed. See City Trust Co. vs. Will Allen, 136 Sou. Rep. 318.