E. A. SAWYER, Appellant,
JOHN A. ELLIS and T. J. BYRNE, Appellees. In the Matter of the Estate of THE PRESCOTT STATE BANK, an Arizona Banking Corporation, Insolvent
APPEAL from a judgment of the Superior Court of the County of Yavapai. Joseph S. Jenckes, Judge. Judgment affirmed.
Mr. J. Gardner Scott, for Appellant.
Messrs. O'Sullivan & Morgan, for Appellee Ellis.
Messrs. Cornick & Crable, for Appellee Byrne.
[37 Ariz. 444] LOCKWOOD, J.
This is an appeal from an order of the superior court of Yavapai county dismissing a petition of E. A. Sawyer, hereinafter called appellant, to set aside an order directing the payment of fees to John A. Ellis and T. J. Byrne, hereinafter called appellees, as attorneys for the state superintendent of banks, and for other affirmative relief against Ellis. The facts necessary for a determination of this case are not in dispute, and may be stated as follows:
The Prescott State Bank, hereinafter called the bank, was found to be insolvent some time in 1925, and was taken over by the superintendent of banks, [37 Ariz. 445] as provided by law. Appellant at the time of the closing of the bank was a creditor thereof. His claim had been duly presented and allowed, but not yet paid, and it is admitted that the assets of the bank were and are not sufficient to pay all the claims allowed. At the time the bank was taken over as above, A. T. Hammons was the superintendent of banks, and appellee Ellis was employed by him as an attorney under an agreement that Ellis should receive an allowance of $175 per month, which should be considered merely as a retainer, and that there should later be a hearing, at which the total value of the legal services should be determined by the court. Ellis performed various legal services under this agreement from the year 1925 up to September 17th, 1929, during part of which time he was assisted therein by T. J. Byrne. In the latter part of the year 1928 Hammons was succeeded as superintendent of banks by James B. Button, who held such office at all times during the progress of this suit.
On September 17th, 1929, appellees filed a petition, setting up the employment of Ellis, the agreement aforesaid, and his services. The petition then further alleged that Button, owing to the date of his appointment, was not at all familiar with the nature and amount of the legal work performed by Ellis
and Byrne, and that he had therefore requested petitioners to ask the court to determine the value of such services. The officers of the insolvent bank were duly notified of the hearing, which was held October 30th, 1929, but no notice was given to any of the creditors. Various witnesses testified as to the value of the legal services, and on this evidence the matter was submitted to the court, and the following minute entry was made:
"It is Ordered that said John A. Ellis recover from The Prescott State Bank an attorney fee in the sum of $35,000.00 in addition to the amount already received [37 Ariz. 446] in the way of monthly salary, and that he recover from the Commercial Trust and Savings Bank an attorney fee in the sum of $10,000.00 in addition to the amount already received as a monthly salary. It is provided, however, that any sum already paid to John A. Ellis by either of said banks as an advance on attorney fee be deducted from the above amounts."
On November 12th, 1929, the following order was filed:
"It is hereby ordered, adjudged and decreed that the sum and amount of Thirty-Five Thousand Dollars ($35,000.00) be allowed and paid to said attorneys, and that there be deducted therefrom any amounts heretofore advanced, but excluded ...