In re McCracken & McLeod , 129 F. 621 ( 1904 )

HAMMOND, J.

The one attorney’s fee allowed the petitioning •creditors by section 64b (3) of the bankruptcy statute of 1898 (Act July 1, 1898, c. 541, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448]), should be equitably divided between the attorneys representing two .petitions filed and consolidated by order of the court under general ■order 7 of the Supreme Court Orders in bankruptcy (89 Fed. v, 32 C. C. A. xi). The referee decided that the attorneys filing the second .petition were not entitled to share in the fee, because that petition was unnecessary — giving the whole of it to the attorneys filing the first .petition in point of time — and this petition was filed to review that finding. The consolidation by order of the court before the adjudication and before the reference to him precluded that question before the referee, and he was not authorized, after such an order of consolidation, to determine that the petition was unnecessary. It was already res judicata, and he should have confined his action to determining the amount of the fee, and, if the attorneys could not agree -about its division, to allow to each a share according to the relative value of the services and amount of work done by each in behalf of the creditors, having care to adhere to the statute by not allowing more than one fee, however numerous the attorneys.

The finding will be vacated, and the case returned to the referee, with directions to proceed according to law. Ordered accordingly.