Bray v. Staples

PRITCHARD, Circuit Judge (after stating the facts as above). As appears from the statement of facts, on the 30th day of September, 1901, B. J. Fisher filed his pleadings in the United States Circuit Court in the action in which a receiver had been appointed, setting up a judgment of $25,000 which he had obtained in the state court, claiming enough of the fund in the custody of the court to satisfy such judgment before the trustees of the deeds of trust and the bondholders were entitled to receive anything; and this, by virtue of section 1255 of the Code of North Carolina, as will appear by the pleadings in that proceeding. His right to the fund claimed, or any part of it, was denied by the Guardian Trust & Deposit Company, the trustee in the first deed of trust. This suit was in effect a test case to determine this matter, both as to Fisher and the other judgment creditors, and the decision of that case governed the cases of the other judgment creditors; and the conduct of that case devolved entirely upon his attorneys of record, Messrs. Staples and Brooks. An examination of the record will show that appellee and Mr. Brooks appeared as counsel for Mr. .Fisher before Judges Simonton and Boyd, who,heard the case. From the judgment rendered therein, [327] an appeal was taken to this court, and, when the question' was argued here, appellee and Mr. Brooks appeared as counsel for Mr. Fisher and argued the different questions involved in the controversy. After argument was had before this court, the case was certified to the Supreme Court of the United States. There the appellee and Mr. Brooks again appeared as counsel for Mr. Fisher and succeeded in establishing the priority of the judgment which had been obtained in the state court. From the time the Circuit Court of the United States assumed jurisdiction, the proceeding was purely of an equitable nature and was contested as such by appellee and Mr. Brooks as attorneys for Mr. Fisher; and, as a result of their services, it was finally decreed that Mr. Fisher was entitled to priority in that suit, and a decree was entered in his favor, by virtue of which the sum of $33,000 was adjudged to be due Mr. Fisher, and this amount was paid over to Mr. Brooks, who was, as we have said, associated as counsel with Mr. Staples. The learned judge who heard this case below found as a fact that it was agreed between Messrs. Fisher and Staples that Mr. Staples was only to be paid a fee for his services in the event he should recover, and that his fee was to be paid out of any amount that might be recovered. It also appears, as is shown by the findings of fact, that the sum of $3,100 was to be held by Mr. Brooks to await the determination of the controversy between Mr. Staples and Mrs. Fisher (executrix of Fisher, who had died in the meantime), as to the amount of appel-lee’s fee, and that out of said sum appellee was to be paid such amount as might be found to be due him for services rendered in that suit. Counsel for appellants insist that there was a final decree entered prior to the institution of this suit by which that case was taken from the docket. That decree, however, provided that a final report should be made, and in the event no exceptions thereto were filed, that the receiver should be discharged; but an examination of the record shows that no report has ever been filed by the receiver, and, therefore, the judgment has not become effective owing to the conditions contained therein. The court below found as a fact that the case is still pending on the docket at Greensboro, and this finding of fact, in our opinion, disposes of the question as to whether this court has jurisdiction. It is also insisted that, inasmuch as the original amount of the judgment was paid over to Mrs. Fisher, the court thereby lost control over the fund and has, therefore, no power to make any order respecting the same. The court below found as a fact, based upon the petition and the answer filed by Mr. Brooks, together with his testimony, that, during his absence, his law partner, while acting under a misapprehension of the facts, did pay to Mrs. Fisher $20,000 of the fund which had been directed to be held by him subject to the determination of the controversy between the appellee and Mrs. Fisher. It is also shown and found as a fact that, as soon as Mr. Brooks returned, he repudiated the entire transaction, and, out of other funds in his possession as agent for the Fisher estate, placed the sum of $3,100 in the bank to his credit as solicitor to await the determination of the controversy between ap-pellee and Mrs. Fisher; and this is the fund which is now being held [328] by Mr. Brooks subject to the orders of the court to await the determination of the question as to the amount that Mrs. Fisher, as executrix, is due to appellee, as attorney. That the court had the custody and control of the fund acquired in this suit is admitted. Having thus acquired the custody of the same, it necessarily follows that it had jurisdiction to determine when it should be disbursed and to whom it properly belonged. Under the terms of the contract between petitioner and his client, the petitioner was only entitled to compensation out of any amount that he might recover in that suit, and it was by his skill and ability that the judgment in question was recovered. We think that the.court below very properly held that the appellee was entitled to be paid for his services out of the funds thus recovered. Under the circumstances of this case, and in view of the findings of fact by the court below, we are of opinion that there is no error, and that the judgment complained of should be affirmed.