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What was the purpose of this? The evidence as to this item was already before the court. The court had complete jurisdiction. Is it the policy of the law to encourage multiplicity of legal proceedings? Why should the estate be charged with the additional costs and expense of re-presenting and re-trying this matter? There was but one duty for the court to perform,-either, upon the evidence before it, to have found that this claim was not a legal obligation against the assets of the trust, and disallow the same, or if, upon the evidence, it appeared a proper charge against such assets, to have allowed the same.

Prior to the appointment of Mr. Cunningham as a receiver, he had a claim of $2,400 against one of the provisional cities of Guthrie, and entered into a contract with De Steiguer, as president of the bank, by which the latter agreed to purchase and pay to him 90 cents on the dollar for whatever amount of said warrants the district court would allow. Thereafter, of said warrants, said district court allowed $1,000; 90 per cent. thereof, together with interest thereon, amounting to the sum of $997.35. On this contract the receiver asked the court to allow him the sum of $997.35, but his claim was disallowed. The court found that this contract in the matter was signed by De Steiguer; that the signature was in his handwriting, while the words "President of the National Bank of Guthrie" seemed to be in the handwriting of Mr. Cunningham, who wrote the original contract; that the contract was a contract with De Steiguer, and not with the bank, and does not purport to be a contract with the bank, although the contract is in writing and in this record, and there is no evidence whatever aliunde to show that it was an individual contract between De Steiguer and this receiver, or that De Steiguer was ever engaged in the purchase of warrants on his individual account; but it is shown that the bank was a dealer in and a purchaser of such warrants. The court below assumed it to be an individual contract of De Steiguer because the words "President of the National Bank of Guthrie," after the signature, are in the handwriting of the body of the contract, and not in the handwriting of Mr. De Steiguer. I cannot here properly characterize such reasoning. Nothing is more common than for the draftsman of an instrument which is to be signed in an official capacity, after leaving blank for the signature, to add the official capacity in which it is to be signed. Nine-tenths of the judicial orders and journal entries prepared for our signatures have the word "Judge" written by the draftsman on the order or entry, after the space for the signature. The evidence of the receiver is clear and positive that, in making such contract, he was dealing with De Steiguer, as the agent of the bank; and this positive evidence is set aside and disregarded by the court upon the frivolous

imagining of the trial judge that the quoted words may have been subsequently added by Mr. Cunningham, or that they might have been simply as descriptive of the person whose contract it was. This straining for weak fortification of pre-existing conclusions is too apparent all through this case. Again, although this claim is disallowed, leave is given to have this matter determined in an action between Mr. Cunningham and the present receiver. Why bring another action? If more proof is required to determine whether De Steiguer or this trust was responsible upon this contract, why was not such proof demanded then and there? The court had. jurisdiction of all of the parties and of the subject-matter. If the contract was a valid contract of the bank, this was the only proper proceeding in which it should have been allowed. It is mere trifling with justice or cowardly shrinking from responsibility for a court having jurisdiction of the parties and of the subject-matters of the action, and all the evidence having been presented, to dismiss the cause, and tell the plaintiff to commence over again. If the trial judge believed that that claim was not a just and legal claim against these assets, he should have said so, and disallowed it. If he believed it to be a just and legal claim, he should have allowed the same, and not have harassed and annoyed the plaintiff, by compelling him to enter into other tedious litigation for its recovery, or harass and annoy the present receiver, and squander the assets of his trust in defending against it.

An item of $1,507 paid to attorneys by the receiver was disallowed to the extent of $692. The majority of the court, in their opinion, say: "Judge Burford [the trial judge] found that the amount paid in compensation for attorney's services was extravagant in proportion to the amount of the services, and that the times in which the receiver was advised by Mr. Wisby, and service rendered, practically amounted to nothing, and were amply compensated by the fees of $500 and $315, respectively, and that the charges of $692 should be disallowed." Mr. Wisby, the attorney who was employed by the receiver, and for whose services the allowance was asked, as also the receiver, who is an attorney of 35 years' practice, testifies as to the amount of service performed by the attorneys, and that such services were reasonably worth the sums paid therefor by the receiver, and for which he asks allowance. There was no other evidence as to the value of such services. The judge or jury trying the question of the value of professional services is not bound to accept as conclusive the opinion of professional witnesses. Where the court has before it the terms of employment, the character of the litigation in which the services were rendered, the manner in which the services were performed, the time occupied, and the benefit resulting from the serv ices, it is the duty of the court to consider all

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these matters in addition to the testimony of the expert witnesses in determining the value of the services. The opinions of the professional men who are conversant with the nature and value of legal services are entitled to great weight, but such opinions are not binding or conclusive. The court or jury trying the facts may use and apply its own general knowledge and judgment, in the light of the testimony, to determine the value of the services. Bentley v. Brown, 37 Kan. 14, 14 Pac. 434; Head v. Hargrave, 105 U. S. 45. If, then, there was any evidence on which to base the finding of the court below as to the value of these legal services, or if the judgment of the court below was based upon his own personal knowledge of the value of the services proven, or established by the evidence, then his findings and conclusions there ought not to be disturbed; but if his judgment was based upon his general knowledge of the value of legal services, not of the character, kind, or extent shown by the evidence, or if he clearly overlooked or disregarded the testimony as to the extent of the service performed, then this conclusion ought not to be upheld by this court. trial judge clearly bases his conclusions upon the hypothesis that "the services rendered practically amounted to nothing"; while the evidence shows that the estate had been in constant litigation for more than three years, not only in several of the district courts of the territory and in the supreme court, but before town-site boards, and special commissions, created by special statutes, to audit the debt of the provisional city government. The evidence shows that, for the item of $315 attorney's fees charged, the services performed were the resisting in the district court of a motion to remove the receiver; two days' services in the supreme court; bringing an action in the district court in behalf of the estate for $5,800; commencing an attachment case for the recovery of a $500 debt; and going to Payne county to recover $1,100 of school warrants. For the $692 attorney's fees charged, the services performed were settling an account due the bank of $1.300, on which there was realized $650; the collection of $250 in an attachment pro ceeding against one Waite, which went to trial and judgment; the adjustment of claims against the city of Guthrie, amounting to some $11,500, on account of provisional warrants, on which there were realized 50 cents on the dollar. The attorney was engaged in this one matter 10 full days. The record shows that there were 20 or more suits in the district court, 3 or more cases before the town-site board, and at least 6 motions to remove the receiver, and that there are even now pending 8 or 10 cases in the district court by or against the receiver. and yet the trial court says the service rendered practically amounted to nothing. Again, the evidence clearly shows a contract between the receiver and Mr. Wisby, approved by the court, by 51 P.-9

which the receiver agreed to pay to the attorney, at the time of his employment, a retainer fee of $500. The court below says there was no service performed for this retainer. What service is to be performed for a retainer? What is the nature of a retainer? It is not a contract for the future performance of services. Is a general retainer fee of $500 unreasonable or extravagant where the estate involved is an insolvent estate, involving assets of the face value of $120,000? Whatever may be the views of the trial judge or a majority of this court, I have no hesitancy in saying that I would want no man to act as an attorney for a receiver whom I should appoint who would be willing to accept a retainer of $500 in looking after the legal business of a trust involving $120,000, nor would I want to be responsible for the conduct of litigation as voluminous, complex, and important as the litigation in which this estate was involved, and intrust it to the care and ability of an attorney who would contract to perform the service for a less sum than the amount paid by the receiver in this case. I think the action of the court below in disallowing any portion of this attorney's fee was not only unjust, but, if approved, is absolutely pernicious, as tending to the placing of large estates in the hands of receivers, under the control and management of incompetent and unskilled attorneys, who will accept employment for a remuneration absolutely inadequate to secure that capacity, integrity, and responsibility that is required. The claim for general compensation filed by the receiver, $250 per month for 33 months, was disallowed, and, in lieu thereof, the court allowed $250 per month for the first 6 months; $125 per month for the second 6 months; for the year 1894, $100 per month; and for 21⁄2 months in 1895, and until the end of the receivership, the sum of $50 per month. The receiver was in charge of the estate for 33 months. The testimony of the receiver and of Judge Green shows that, at the commencement of the trust, the receiver asked to have his compensation fixed; that the judge told him that $250 per month he considered a reasonable compensation; and that that amount would be allowed to him until further direction was made. In addition, Mr. Cunningham testified that the service performed by him was reasonably worth more than $250 per month; that, at the time he entered upon the duties of the trust, he was engaged in a lucrative practice as an attorney at law, realizing more than $4,000 per annum therefrom; that, by reason of this assumption of the trust, he was compelled to give up a large portion of this private business; and that, by reason of his acceptance of the trust, the occupation of his time therein, and the complications arising therefrom, he had entirely lost his private clientage. The receiver was required to give a bond of $1,000,000. No evidence was offered to impeach the testimony

of Judge Green or of the receiver, and no evidence was offered by the objectors to show that the service performed was of less value than that stated by the receiver and by the judge. While I have stated that, in relation to professional services, the court or jury trying the fact may use and apply its own general knowledge in the light of the testimony to determine the value of the services, this rule, I think, does not apply in determining the compensation of a receiver for services in conducting a nonprofessional business. This court cannot presume that the trial court had any general knowledge of the business involved in the settlement of the multifarious matters and interests which would arise out of the adjustments of the concerns of an insolvent banking institution; and, as the law has provided no system of practicing which authorizes the cross-examination of the judge to determine his qualifications to set his own private judgment up against the sworn testimony of competent witnesses, I think it would be an extremely dangerous practice to affirm the action of the trial court in this particular. If the testimony of competent witnesses is not to weigh, but the mere notion of the trial judge as to his own ability to determine the value of such services is controlling, and one trial judge may at his own will set aside the direction and allowances of his predecessor, then no prudent man would accept employment as the agent of a court to perform these important duties. The allowance asked for by the receiver in this case may be excessive, and may be greater than should have been allowed, but, if so, that fact should have been established by competent evidence. If the objectors believed $250 per month was an unreasonable compensation for the receiver, they should not have relied upon the general knowledge of the court, known only to itself, but should have produced witnesses to have rebutted the positive testimony of witnesses produced by the receiver. I am not prepared to say whether or not $250 per month is an unreasonable compensation for one who is compelled to enter into a bond of $1,000,000 for the faithful performance of his duty, and for conducting and managing the affairs of an insolvent estate having $120,000 assets; but I am prepared to say that, in my judgment, the trial judge had no right to say that such compensation was unreasonable, in the absence of any evidence to contradict the evidence of its reasonableness.

I regret exceedingly that duty compels me to review the merits or demerits of the theory upon which the majority have arrived at their conclusion in this case. My respect for my associates, excelled only by my respect for the integrity of the judiciary, impels me to wish that before their opinion should be ushered forth in print, and made a part of the permanent records of this court, it should be, at least, stripped of that which I cannot

but conceive to be, at least, an unwarranted attack upon the integrity of a former member of this bench. If I did not believe that the error into which I am satisfied the majority has fallen arises from a too hasty examination of the record (in a measure excusable), I should consider the reference made to Judge Green, not as unjustifiable merely, but wanton. If the integrity of the judiciary is to be assailed, let it not be assailed by the judiciary, unless upon the clearest demand of duty, and under the force of positive conviction, arising from clearly established facts.

A conclusion of the trial court, approved by the majority herein, is that Judge Green was shown in the evidence to have been interested in the settlement of the trust estate; that he was not competent to decide the matter; and the majority, in the opinion, say: "It appears from the testimony of Mr. Cunningham that, the next day after his appointment by the court, the judge [Green] came to him, and asked for money for an immediate payment demanded by McNeal; that he was not yet in the possession of the assets of the bank, and that he [Cunningham] assisted the judge in procuring a loan of $550 from De Steiguer, out of the assets of the bank of which he had the day before been appointed as receiver; that the receiver had been a 'go-between,' after his appointment as such, between the judge of the court who had appointed him and De Steiguer, to get the loan of $550 for the judge, and that, if the books of the bank had been examined, this matter would have been disclosed. It has been shown that he [the judge] was interested and participated in keeping the manner in which the trust was managed secret." This last clause, quoted from the so-called "findings" of the trial court, is absolutely without foundation in the testimony. There is nothing in this record from which, by the most violent inference, it could be assumed that Judge Green in any manner participated in keeping the manner in which the trust was managed secret, and therefore such charge must be considered not only as unjustifiable, but absolutely wanton. The only foundation for the assertion that Judge Green was interested in the settlement of the trust estate is the fact that he was indebted to the estate upon a promissory note in the sum of $1,160; nor is the court justified in saying that Judge Green made a loan of $550 through the receiver out of the assets of the estate, the only evidence upon this point being that a day or two after the appointment of the receiver, and before he had qualified, Judge Green informed him that he was in need of $550, and asked him to procure it for him or assist him in procuring it; that the receiver informed him that he had not the money himself, but that he would indorse for him or procure somebody to loan it to him; that knowing that De Steiguer

was supposed to be in good circumstances personally, and then engaged in making loans upon his private account, Cunningham went to him, and asked him if he could accommodate Judge Green with a loan of $550; that De Steiguer did make the loan; and 'that neither Judge Green nor the receiver at the time, nor until long after, knew that De Steiguer used the money of the bank in making said loan. This is the whole basis of the charge of corruption which is made the key of the decision of the majority in this case. It is founded upon an assumption not warranted by the testimony. It presumes a wrong and corruption where right and honesty are more natural deductions. If Judge Green knew at the time that he received the $550 that it was taken from the assets of the bank, then he would be subject to the criticism made by the majority; but the evidence is positive that he did not know, and I know of no rule of law or morals which prevents a judge of a court from borrowing money which is the private money of an officer of a bank, even though the bank itself may be in the hands of a receiver appointed by such judge. It would be reprehensible in the highest degree, amounting to impeachable dishonesty, for a judge of a court to borrow from his clerk or register trust funds in the hands of such officers under the order of the court; but I know of no rules prohibiting the borrowing of the private funds of such officer. Judge Green was indebted to the bank when he appointed this receiver, and while he was administering this estate; and it is now said by the trial court, and approved by this court, that he was incompetent and disqualified thereby from controlling its administration or making any orders therein which were worthy of respect. this be true,-if the logic of the theory of the majority be sound, that De Steiguer, Cunningham, and Judge Green were joint conspirators in a wicked conspiracy to loot and plunder the assets of this trust,-why has not this court preferred to say so in plain terms, and not in innuendo? Why not apply the proper remedy? Fraud vitiates everything it touches. Why not, then, set aside these proceedings ab initio, and compel the receiver to account for and pay over to his successor all the assets which came into his hands by virtue of his fraudulent conspiracy? It has not been considered worthy of notice by the majority that for more than a year after this receiver had been appointed by Judge Green, after it was known that Judge Green was indebted to the bank, after it was known that the $550 loaned to him by De Steiguer had been taken from the bank, after everything that is here complained of by the objectors was known to them, no complaint was made that Judge Green was disqualified or incompetent. No effort was made to move the cause from his jurisdiction, but he was permitted to go on without objection, directing the receiver in the

If

administration of the trust, and making orders and giving directions on which the assets were being expended, until he retired from the bench, by virtue of the appointment of his successor. It is after he has retired from this bench, and when application for a continuance of the hearing upon these objections, until he could recover from illness, at his distant home in Illinois, and come to testify in these matters and in defense of his own honor, had been denied, that these accusations are made, these unjustifiable deductions are drawn, and written into the permanent record of this tribunal, that his integrity and learning have elevated and honored; and I protest at the volumes of the reports of this tribunal, the pages of which are closed to him, and upon which he may not write the explanation or refutation of these unwarranted deductions, being used to record such charges or deductions unless essential to the vindication of right, and established by, at least, fair inference from the record. I am clearly of the opinion that there has not been a fair and impartial trial or consideration of the issues involved in this case; that the record has not been examined by the majority with that care and consideration demanded, and that the conclusions of the majority are not sustained by the evidence; that the case should be reversed, and remanded for trial according to the rules of law and evidence which would be applied in other cases.

On Petition for Rehearing.

(August 18, 1897.)

KEATON, J. Owing to the peculiar complications which have arisen in this case, caused somewhat by the matter contained in the dissenting opinion filed herein by Mr. Justice TARSNEY, which said opinion is sought to be made a part of plaintiff in error's original application and motion for rehearing by the tenth assignment contained therein, which is as follows: "We have examined the dissenting opinion in this case of the Honorable Judge TARSNEY, filed this day, and regard it as a correct declaration of the law, showing a careful examination of the record and the law, and, by reference thereto, hereby incorporate it in this petition as conclusive grounds for the granting of a rehearing and a reversal of the decision of the court below, and earnestly invite a careful and candid consideration of the unanswerable arguments therein contained," it has been determined by a majority of the members of this court that the situation is such as to demand that we go further than is usually customary in passing upon a petition or application for a rehearing, and hand down a written opinion thereon, especially covering the principal points of difference between the original majority opinion of this court and the dissenting opinion as to what the evidence contained in the record dis

closes the facts to be concerning certain material propositions involved in the case.

The difficult task of preparing such an opinion has been assigned to me, and, after a thorough examination and re-examination of the evidence contained in the record, I desire to state at the outset that, in my judgment, the disagreement upon said propositions between the writers of the two former opinions filed herein arises more largely from the difference in the deductions drawn by them from the evidence contained in the record than from a difference of opinion as to what said evidence actually is; hence I have concluded that the best, if not the only, way to properly settle and determine the controversies thus presented, and finally dispose of this cause, is to set out in hæc verba considerable portions of the testimony bearing upon the said disputed propositions, even at the risk of making this opinion cumbersomely prolix.

As I am convinced, after a careful reexamination of the evidence contained in the record, that the former conclusion reached by the majority of this court in the original opinion filed herein should, in all things, be sustained, and as one of the principal and most vigorous assaults made upon said opinion, both in the dissenting opinion and the original and amended applications for a rehearing of this cause, is, in substance, that the finding and conclusion of the writer of said majority opinion-to the effect that Judge E. B. Green, who appointed the receiver, the approval of whose accounts is the subject of this entire controversy, sustained such relations to the defendants, the National Bank of Guthrie and L. De Steiguer, as to render him in fact an interested party in the administration of the trust estate-are wholly unsupported by the evidence under the law applicable thereto, I shall first quote certain portions of the testimony bearing upon this proposition, and then give what I conceive to be the legitimate and natural conclusions to be drawn therefrom. In order that there may be no possible room for mistake or disagreement as to whether or not the testimony set out in this opinion is correctly quoted, I shall cite the page or pages from which each particular portion thereof so quoted is taken; and upon the proposition now under consideration I find the evidence to be in part as follows (testimony of H. S. Cunningham, the receiver): "Now, I will ask you if, at the time that bank went into the hands of a receiver, after the order of the court was made, there was not $550, or about that, of the bank assets, taken, with your knowledge, by De Steiguer, and given to Judge Green, and his note taken for $1,600, including this $550, or such an amount, and given by De Steiguer to you, and without any obJections upon your part to such use of the bank funds? A. No, sir; that is not true. Q. What is the truth about that matter? A.

I learned of that transaction which you detailed taking place, but that it was done with my knowledge or my consent, or that any money was removed from the bank with my knowledge and consent, is not true. Q. When did you learn of it? A. Not until long afterwards. Q. How long afterwards? A. I don't know how long afterwards, but a long time afterwards. Q. About how long afterwards,-well, about the time? A. I think it was first up about the time, I think, of the investigation of Judge Green. Q.

When were you given that $1,610 note of Judge Green's? A. Well, I was given that note on the 16th of June. Q. 16th of June. 1892? A. Yes, sir; I think I had it in the list of assets anyway. (Pages 115, 116.)

Q. If you found out at the time of the investigation the fact that these papers had been turned over, did you find also that Judge Green had received the assets of the bank after the bank had been-after the receivership had been-turned over to you? A. Why, I knew of Judge Green borrowing $500. Q. $500 or $550? A. $500, as I understood it. I can tell you the circumstances of that if you want to know. Q. What are the circumstances? A. The circumstances are that Judge Green asked me to lend him $500,-asked me if I could lend it, asked me if I could lend him $500. Q. When did he ask you that? A. Well, I don't know when it was. Q. Was it before or after this receivership? A. I think it was after. Q. How long after? A. Well, it was about that time. Q. On the same day, was it, or not? A. No, sir; it must have been the next day or two. Q. Very well, he asked you to lend him $500? A. Yes, sir. Q. Then what happened? A. I told him I could not do it. Q. Then what happened? A. But I told him that I would indorse with him, or that I would see if I could not get somebody to lend it to him. I heard that Mr. De Steiguer was loaning money then, or talking of making a loan to Craig for $1,250, and I asked him if he could not loan Judge Green $500. He said he could. Q. He was loaning to whom? A. He was loaning to Dr.. Craig. He was negotiating a loan with Dr. Craig. Q. De Steiguer, the president of this bank that had gone into the hands of a receiver? A. No, sir; not the president of the bank, but Mr. Louis De Steiguer. Q. Was he not the president of the bank at that time? A. Yes, sir; certainly he was. But he was not loaning money for the bank. He was loaning money to Dr. Craig, or discussing the probabilities or possibilities of loaning it, and I supposed at the time that De Steiguer was rich. Q. You didn't suppose that the president of a bank that had just gone into the hands of a receiver was rolling in wealth? A. Yes, sir; I did. I had no doubt about it. Q. And supposing that, did you ask him, immediately upon assuming the receivership, to make Judge E. B. Green a loan of $500? A. Just wait un

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