Seligman v. Saussy

Warner, Chief Justice. A bill was filed in the superior court of Chatham county by Moses Ecrst and others, as creditors of Samuel Kaufman, Henry Mayer and Chai les H. Kaufman, against George You Seybold and others. The bill was what is generally known as a creditors’ bill, and was filed on the 12th day of October, 1874. No subpoena and no relief were prayed — 22 — against the said Kaufmans and Mayer, whose property was sought to be distributed under the bill, and which property came into the custody of said court. On the 21st day of October, 1874, a petition in bankruptcy was filed in the district court of the United States for the southern district of New York, by creditors, against the said Kaufmans and Mayer, and on the 31st day of October, 1874, the said Kaufmans and Mayer were, in the said last mentioned court, duly adjudged bankrupts. On the 25th day of March, 1875, the said complainants amended their said bill so as to make the said Kaufmans and Mayer parties defendant thereto. On the 5th day of April, 1875, Joseph Seligman, Lawrence Wells, and Edward Morgan, trustees in bankruptcy of the said bankrupts, having, on the 15th day of February, 1875, obtained an injunction from the district court of the United States for the southern district of Georgia, restraining the complainants in said bill from proceeding therein, filed a petition to obtain possession of the assets of said bankrupts, which petition was finally granted by the said superior court at the November term, 1876, the order therefor having been dictated by this court, which provided that the necessary costs and expenses for securing and collecting said fund, should be first paid before the said fund should be turned over. Before the said fund was finally ordered to be paid to said trustees, petitions were filed by various parties to have paid to them sundry sums of money, for various services alleged to have been rendered by them in said cause ; and the nature of said services were alleged to be as follows: J. R. Saussy claimed compensation for his services as solicitor for the complainants in the bill. ITowell & Denmark claimed as assistant counsel for the complainants ; and also by virtue of an alleged lien as counsel for attaching creditors, upon a part of the fund in the custody of said court. George Von Seybold claimed as receiver in said cause, — 23 — and Iiartridge & Cliisliolm and William H. Garrard as his counsel. O. I). O. Rliind, as master in said cause. Charles S. Hardee claimed a sum for costs due him, and due the late clerk, George P. Harrison, and the sheriff, John T. Ronan. Philip M. Russell claimed for costs due upon attachment cases against said bankrupts in the city court of Savannah. Sigmund Elsinger and Julius Kaufman jointly claimed for magistrate court costs against said bankrupts. Rufus E. Lester and George A. Mercer separately claimed for counsel fees on sums, a part of said fund, alleged to have been attached by their clients. No attachment upon which costs or fees were claimed, originated over one month before said bankruptey, and none were due upon, any attachment carried to judgment. To these claims the said trustees in bankruptcy, and the said bankrupts, and Easterling & Hubbell, creditors defendant to said bill, filed various objections, which were in substance as follows — • To all of the claims they objected : 1. That by the bankrupt laws of the United States the trustees were entitled to have the fund in its integrity, and without any diminution by payment to the claimants. 2. That the state court had no such jurisdiction of the said fund as would authorize it to grant ¡Daymen t to the claimants. 3. That the claimants severally had performed no services for which they were entitled to the amounts they claimed, or any part of them. 4. That the claimants were not entitled to be paid anything in a court of equity, until a final decree should be had in that court in favor of the complainants against the defendants. In addition to these general objections, they specially objected as to the claims of all parties except the receiver, master, sheriff and clerk, that their services were not such as entitled them in equity to receive payment out of said fund; — 24 — and as to counsel for attaching creditors, and the said J. R. Saussy and Howell & Denmark, that they -were entitled to be paid by their clients out of their dividend in the final distribution, and not out of said fund. The court overruled these objections of the said objectors, and ordered that the receiver should pay to J. R. Saussy............................................$ 2,000.00 Howell &Denmark.................................... j 1,000.00 ( S60.00 Rufus E. Lester......................................'... 256.55 Hartridge & Chisholm, and William U. Garrard............ 2,500.00 C. D. O. Rbind.......................................... 200.00 Charles S. Hardee, 1 GeorgeP. Harrison, f-............................'........ 677.35 John T. Ronan ) Phillip M. Russell..................................... 127.50 George Von Seybold, 5 per cent, uponfund, say..........( 2,500.00 ¡ 1,146.63 Elsinger & Kaufman...................................... 64.15 George A. Mercer....................................... 151.99 $11,184.17 The assets reported to the court by the receiver were some fifty thousand dollars. To this decree in favor of said complainants the said trustees filed a bill of exceptions, alleging that the court erred upon the grounds named in their objections; the said Easterling & Hubbell, and the said Kaufmans and Mayer filed a bill of exceptions, similar in all respects, and the cause was sent to this court upon one record for both bills, under an agreement to that effect between plaintiffs and defendants in error. 1. When this case was called for a hearing in this court, the defendants in error made a motion to dismiss it, on the ground that the evidence in the case had not been approved by the court. The case was submitted to the court for trial without the intervéntion of a jury, and the evidence had before the court is set out in the bill of exceptions, which the presiding judge certified, when taken in connection with the record, was true. The evidence, there — 25 — fore, as set out in the bill of exceptions, was approved by the judge. 2. 3. When the case was before this court on a former occasion, the fund in the hands of the receiver was directed to be surrendered to the trustees in bankruptcy, except so much thereof as is legally necessary to defray the costs and expenses of collecting the fund, and of securing it until the order of surrender shall be granted. See Seligman et al. vs. Ferst & Co. et al., 57 Ga. Rep. 561. "We adhere to and reaffirm the judgment rendered in that case. It appears from the bill of exceptions that Yon Seybold testified that his services as receiver were worth the sum claimed by him, that Mr. Saussy testified his services as counsel were worth the amount claimed by him, that Denmark testified that the services of Howell and Denmark as counsel were worth the sum of $1,000.00, that Garrard testified that the services of himself and Messrs. Hartridge & Chisholm as counsel for the receiver, were worth the amount claimed by them, that Carr testified that the services performed by Rhiud were worth about $100.00 per month, without stating what services he did perform, and that is all the evidence as to the' services claimed and rendered, as appears from the bill of exceptions, upon which the judgment of the court for the $11, 181.17 was founded. What were the legal and necessary costs and expenses of collecting the fund, and securing it until surrendered to the trustees 'i In our judgment it includes the proper and necessary expenses in filing the bill and collecting the assets by the receiver, including counsel fees*from the time of the filing of the.bill up to the time the assets Mere demanded, on their petition, by the trustees in bankruptcy, and including the services of the receiver and his counsel up to the time of ordering the surrender of the fund. 4. 5. But nothing should be allowed out of said fund for counsel fees, or costs, in suing out the attachments in the record mentioned, as said attachments did not and could not have contributed anything towards the collection of the — 26 — fund in the hands of the receiver, the same having been dissolved by operation of law, and nothing should be allowed for counsel fees or costs incurred in resisting the trustees after the trustees filed their petition. Inasmuch as the evidence in the bill of exceptions does not show for what the services claimed were rendered, whether in suing out the attachments or in filing the bill, or both, or in aiding the receiver in collecting the assets, we reverse the judgment and order a new trial, so that it may be made clearly to appear, by the evidence, for what the services claimed were rendered, and what those services were worth. In other words, what did the parties claiming compensation out of said fund do in collecting and securing it under said bill, and what were the services performed by them worth, which were properly chargeable upon said fund? Let the judgment of the court below be reversed. Bleckley, Judge, concurred, but furnished no written opinion.