Commonwealth v. Traders & Mechanics Bank , 268 Pa. 526 ( 1920 )

Opinion by

Mr. Justice Walling,

This appeal is from the confirmation of an auditors’ report. The Traders and Mechanics Bank of Pittsburgh, Pa., became insolvent and in February, 1908, Charles F. Kirschler was appointed its receiver, and as such gave bond in $400,000. He proceeded to collect the assets and, from time to time, filed partial accounts, the first four of which were confirmed without exception and in each case distribution was made to the creditors. His fifth partial account was filed in 1915, and to it appellant, who had become the owner of a large amount of claims against the bank, filed exceptions. The court appointed two members of tbe bar as auditors to pass upon tbe exceptions and make distribution. Tbe investigation took a wide range requiring many hearings by tbe auditors, both at Harrisburg, where tbe accounts were filed, and in Pittsburgh where tbe bank was located and tbe receiver resided. In 1918, before tbe auditors bad finally concluded their labors, tbe receiver filed a sixth and final account; to which appellant also filed exceptions. This account and tbe exceptions were also referred to tbe same auditors, who, in December, 1919, submitted a report, embracing both accounts, dismissing appellant’s exceptions and making distribution. Tbe exceptions were renewed before tbe Dauphin County Court, where a final decree was made overruling tbe same and confirming tbe report; from which tbe except-ant brought this appeal.

Tbe principal complaint is as to tbe amount paid for legal services, tbe commissions of tbe receiver and tbe compensation allowed tbe auditors. Tbe first eight of tbe nine assignments of error are not in proper form as they fail to quote tbe decree complained of (Pfaff v. Bacon, 249 Pa. 297; Ridgway v. Phila. & R. Ry. Co., 244 Pa. 282; Hilliard v. Sterlingworth Ry. Supply Co., 236 Pa. 82); but, even considering them, there is nothing in tbe record upon which to base a reversal of tbe decree. Tbe law firm of Burleigh & Challener, of Pittsburgh, did a large amount of important legal work for tbe receiver, covering a period of seven years, and tbe auditors, approved by tbe court below, found tbe $14,000 paid them therefor was fair and reasonable. This is supported by all tbe evidence and disproved by none. Tbe same is true as to tbe amount paid John Fox Weiss, Esq., of Harrisburg, for legal services performed in that county. While tbe lower court has discretion as to tbe compensation allowed tbe counsel of a trustee, yet, in adjusting tbe same, it cannot arbitrarily and without reason ignore tbe undisputed evidence [Moore’s Estate (No. 1), 228 Pa. 516), and the findings based thereon; nor can an appellate court. One thousand dollars was paid Thos. M. Marshall, Esq., as attorney for a Mr. Glass, in settlement of a suit, but not for services rendered the receiver.

The assets were large and varied and the receivership extended over a period exceeding ten years, during which the receiver seems to have faithfully executed his trust. In fact, the auditors find from the evidence that the trust was executed with zeal and success. The bulk of the estate passed through the first four accounts, and thereon the receiver was allowed a flat commission of five per cent without objection. The same rate was claimed by him and allowed by the auditors and court below, on the last two accounts. In the later years of the receivership the collections were more difficult and the percentage of expense thereof much greater; so the receiver at least earned five per cent of the trust funds passing through his hands during those years; and no other commissions are involved here. “The allowance to a receiver is largely a matter for the court whose officer he is, and with which an appellate court will interfere only to correct an abuse of discretion......Such a finding will not be reversed by an appellate court except on a clear proof of error”: Traction M. Co. v. Pgh., M. & W. Ry. Co. (No. 1), 261 Pa. 153, 161; York Trust Co. v. Pullman Mfg. Co., 237 Pa. 261; Moore’s Est., 211 Pa. 338.

The audits of these two accounts, including passing upon exceptions and making distribution, extended over a period of nearly four years and involved a large amount of work. The court below, who had better opportunity than we, allowed the sum of $7,600 as compensation for the two auditors. There is a presumption, not here rebutted, that the decision of the lower court is right: Scott v. Carl, 24 Pa. Superior Ct. 460, 462. Where there is nothing further to go on than a mere inspection of the auditor’s work as disclosed by the printed paper-books, an appellate court will not review the discretion of the lower court in fixing the auditor’s compensation: Stockdale v. Maginn, 207 Pa. 226.

It is earnestly contended for appellant that as neither the receiver nor his counsel submitted a detailed account, setting forth each separate item, they must be denied all compensation, notwithstanding the findings of the auditors, based on ample evidence, fully set forth the nature, extent and value of the services rendered. This contention cannot be sustained. The burden was upon the accountant to make proof of the disputed items for which he claimed credit. Then it became the duty of the auditors to find the facts and pass upon the exceptions. In so doing they could not reject a claim, clearly and amply proven, for lack of an itemized bill. In Com. ex rel. v. Monongahela Bank, 239 Pa. 254, where the accountant sought to sustain claims for fees and commissions upon lumping charges not supported by any finding based upon adequate proof, the decree was reversed and record remitted that specific findings upon adequate proof might be made as to the value of the services rendered. That case is not analogous to the present, for here we have both the proof and the findings.

The ninth assignment of error merely embraces the final decree and does not seem to require further discussion.

The assignments of error are overruled and the decree is affirmed at the costs of appellant.