Mortimer v. Pacific States Savings & Loan Co.

ON MOTION FOR AN ORDER DISMISSING THE APPEAL, OR AFFIRMING THE ORDERS APPEALED FROM OPINION This is a motion for an order dismissing the appeal, or affirming the orders appealed from, made by plaintiff. Some explanatory statements are advisable.

From May 9, 1940, to October 15, 1942, George Russell, Jr., was receiver of the Pacific States Savings Loan Company, a corporation, doing business in the State of Nevada under the fictitious name of Allied Land Livestock Co., and appellant was attorney for the receiver during that period. The receiver died on October 15, 1942. Prior to his death appellant had been paid under orders of the court in allowances to the receiver for compensation to appellant for his services to the receiver, the sum of $5,000. On the 28th of October 1942 the court entered an order appointing E.A. Clawson as receiver in the place and stead of George Russell, Jr., who qualified as such on October 30, 1942; and thereafter, and on the 4th day of November 1942 upon request of Clawson, the court appointed Milton J. Reinhart attorney for the receiver, and in its order, the order appointing appellant as such attorney was terminated. Thereafter the judge of the court, feeling that appellant was entitled to further compensation, suggested that if he would prepare an order the court would fix it. Appellant stated that it was the duty of the receiver to petition the court to fix his compensation and give him an opportunity to be heard on it. The judge spoke to Clawson, who replied: "I don't feel it is any of my affair because I had nothing to do with employing Mr. Badt and know nothing of his services or what he has been paid and don't feel inclined to do it."

The court, on December 11, 1942, entered an order which, among other things, contained the following: "Therefore, upon the court's own motion, it is Hereby Ordered, Adjudged and Decreed as follows, to-wit: 1. That E.A. Clawson, the receiver herein, be and he is hereby authorized, empowered and directed to pay to Milton B. Badt for the firm of Milton B. Badt and Orville R. Wilson, the sum of Two Thousand Five Hundred Dollars ($2,500.00) as their full and entire compensation for services rendered herein. * * *"

The receiver sent appellant a check for $2,500, which he refused to accept, returning it to Clawson. The appellant then noticed a motion to vacate the order, contending that it was inadvertently made without hearing and without notice and without opportunity to any of the parties to be heard in connection therewith, and that the amount allowed was inadequate to compensate him for his services. At the time noticed for the hearing of the motion the appellant appeared in propria persona, and the receiver and defendant appeared by attorneys. The court entered an order denying the motion and made a further order that the 29th day of January 1943, at 10 a.m. be fixed as the time for the hearing of the determination of reasonable attorney fees in the premises, at which time appellant could present proof to show that the attorney fee heretofore fixed and allowed was unjust and unreasonable. It was also ordered that notice of the above order be given by mailing a copy thereof by the clerk to all interested parties.

At that time an extensive hearing was had at which the receiver, the plaintiff and defendant were represented by attorneys, and appellant by himself. Appellant testified in great detail as to the services rendered by him to the former receiver and also testified as to the inadequacy of the fee of $2,500 allowed him by the court. He was cross-examined at length by the attorney for plaintiff. He was also cross-examined at some length by the court. Three prominent attorneys of the state testified in behalf of appellant and in turn were cross-examined by the attorney for the plaintiff. No evidence was introduced by the plaintiff or the receiver. One witness was called and examined by the court and cross-examined by appellant. The motion was submitted and taken under advisement. A written opinion was rendered by the court and filed February 27, 1943, in which the following order was made: "For the reasons given, it is hereby ordered that the said order entered by this court on December 11, 1942, will stand as entered."

Appellant's appeal is from that part of the order of the district court made and filed December 11, 1942, which orders the payment to Milton B. Badt of the sum of $2,500 as full and entire unpaid compensation for services rendered; from the order of said court made and filed February 27, 1943, denying appellant's motion to vacate said portion of said order of December 11, 1942, and denying appellant's application for the allowance of further attorneys fees.

The motion to dismiss or affirm is on the ground that appellant is not a party aggrieved by the rulings of the court. In addition to contesting the motion on this ground appellant contends that the plaintiff's right to move to dismiss has been waived. As to this latter contention, it has long been the practice in this court to have such motions heard and disposed of in advance of setting the case for hearing on the merits. Here the appeal was perfected May 3, 1943. Appellant's opening brief on the merits was filed on June 11, 1943. The plaintiff's brief was filed August 4, 1943, and appellant's closing brief was filed August 16, 1943. The case being thus at issue, the court on that date set the hearing for oral argument for September 21, 1943. Nineteen days after we made that setting, to-wit, on September 4, 1943, this motion to dismiss or affirm noticed for hearing on the same day set for oral argument on the merits, was filed. We heard both the argument on the motion and on the merits at that time in order to accommodate counsel by not postponing the latter argument. It is to be observed that both the plaintiff and receiver obtained stipulations extending time to file briefs on the merits. See Orleans M. Co. v. Le Champ M. Co., 52 Nev. 85- 91, 280 P. 887. It is also to be observed that the receiver has not joined in the motion to dismiss or affirm. At the hearing on September 21, 1943, counsel for plaintiff assumed a rather indifferent attitude as to how the motion should be decided, stating that the office of the attorney-general of California wanted a decision on the point on account of similar cases then pending in that state.

1, 2. We think the right to move to dismiss an appeal so belatedly and unilaterally made, and perfunctorily presented, ought to be disregarded. Moreover, the element of estoppel is involved. As we view it, there has been a change of position to appellant's prejudice. The order of the lower court allowed the fee of $2,500 to appellant. Appellant moved to vacate it on the grounds of lack of notice and inadequacy of the compensation. Plaintiff resisted the motion and defended the order of the court. No objection or suggestion was made that the appellant had no right to make the motion in his own behalf to vacate the order, and that it should have been made in behalf of the receiver. It was recognized by court and counsel that he was within his rights in proceeding as he did. It is now claimed on this motion that the appellant has no right of appeal because he is not a party; that the receiver is such a party; that the award of counsel fees is an award made to the receiver and not to the attorney. Had this position been taken below, the court might have vacated its order pursuant to appellant's motion and allowed the sum to the receiver. Appellant could then, if the receiver refused to appeal, have applied to the court for permission to proceed in his own right and in his own name for additional compensation out of the fund in the court, and in that case the appellant could have appealed, if unsuccessful.

In this situation the plaintiff ought not to be heard to ask a dismissal or affirmance.

For the reasons given, the motion to dismiss the appeal or affirm the orders is denied.

ON THE MERITS February 3, 1944. 145 P.2d 733.