In re MICHIGAN CENT. R. CO., 124 F. 727

LURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court. - The appeal in this case should have been allowed. It may be that the Michigan Central Railroad Company was not originally a party to the foreclosure suit of the Farmers’ Loan & Trust Company against the Detroit & Bay City Railroad Company. That it subsequently became a party by intervention for the purpose of obtaining r’elief in respect of a part of the purchase price of the railroad sold under the decree in that cause is undeniable.

Under that intervention the petitioner made the bond and gave the collateral security out of which has grown the clerk’s claim for the compensation adjudged by the decree complained of. The proceeding thus grafted upon the old foreclosure suit constituted a properly related ancillary suit, the parties to which were the petitioner and the Farmers’ Loan & Trust Company.

In the course of the execution of the orders and decrees made in that intervention the clerk of the court claimed to have been entitled to certain costs and commissions, which he asserted by his own subintervention, and to which he made the petitioner a party. It is therefore not the case of an effort to appeal from a decree by a stranger whose application to intervene had been denied, as in Ex parte Cutting, 94 U. S. 14, 24 L. Ed. 49, but the case of one who had become a party for the purpose of the intervention, and who had been treated as such for more than 20 years.

In respect of any matter within the scope of the intervention the petitioner had thereby become an actor, with liberty to present its contention and obtain an adjudication, and a consequent right to have whatever was done reviewed by this court if the matter was one in its. nature appealable. Ex parte Jordan, ■ 94 U. S. 248, 24 L. Ed. 123; Hamlin v. Toledo, etc., R. Co., 78 Fed. 664, 24 C. C. A. 271, 36 L. R. A. 826; Williams v. Morgan, m U. S. 684, 699, 4 Sup. Ct. 638, 28 L. Ed. 559.

Indeed, it is hard to realize how the decree for $2,710.85 against the petitioner can be of any validity whatever unless it was a party to the proceeding in which the decree was pronounced. That the decree was final, we have no doubt. It finally settles the liability of the petitioner to pay to W. S. Harsha, as clerk, the sum of $2,710.85, and directs execution to issue therefor. It was upon a matter distinct from the general subject of the litigation. Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 224, 10 Sup. Ct. 736, 34 L. Ed. 97. Nothing remains to be done but to collect and pay out the money.

An affirmance here will end the matter forever. Such a decree is final, so far as to be appealable. Forgay v. Conrad, 6 How. 201, 12 L. Ed. 404; Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157; Farmers’ Loan & Trust Co., Petitioner, 129 U. S. 206, 9 Sup. Ct. 265, 32 L. Ed. 656; Potter v. Beal, 50 Fed. 860, 2 C. C. A. 60. That in the future there may be another application for further commissions or compensation, when the petitioner shall apply for and obtain the release of its remaining securities, does not deprive the decree made of its final character.

The petitioner is thereby directed to pay, not into court subject to further order, but to W. S. Harsha, as clerk, “for the services mentioned in said petition, the full sum of $2,-710.85, as prayed, and that said petitioner, W. S. Harsha, have execution therefor.” When this decree is executed, it is a complete end of the whole claim for commissions or compensation, so far as same had accrued and was presented by the intervention of Harsha. But it is said that the decree was for costs only, and, as such, is not independently appealable at all.

This is the ground upon which the court below really denied the appeal, though other reasons have been since advanced. The clerk’s claim, as presented by his petition, was plainly and distinctly planted upon

section 828, Rev. St. U. S. [U. S. Comp. St. 1901, p. 635], which, among other fees, provides that a clerk may receive, “for receiving, keeping and paying out money, in pursuance of any statute or order of court, one per centum on the amount so received, kept and paid.” For special services growing out of his execution of the order requiring a delivery of 266 of the registered bonds of the company to the company, he claimed an allowance of $50. This latter was admitted as a reasonable compensation.

For the service claimed to have been rendered in “receiving, keeping and paying out” of $266,000 of money arising from the original foreclosure sale, the clerk claimed a commission of 1 per cent., or $2,660. To this claim as advanced by the petition the Michigan Central Railroad Company was required by a rule to show cause why the prayer of the petition should not be granted. The railroad company appeared and demurred to this claim of $2,660. The demurrer was overruled.

The railroad company, pleading no further, was thereupon decreed to pay, “for the services mentioned in the petition the full sum of $2,710.85, as prayed, and that said petitioner have execution therefor.” The petition and demurrer presented the question as to whether Harsha, as clerk, had ever had any such custody, control, or management of the proceeds arising from the foreclosure sale made by special master, Addison Mandell, as to entitle him to the commission allowed by

section 828. It involved, also, the question of what constitutes a “receiving, keeping and paying out of money,” within the meaning of sections 828, 995, Rev. St. [U. S. Comp. St. 1901, pp. 635, 711]. There has been some diversity of opinion as to whether, under

section 828, a clerk was entitled to the commission of 1 per cent, unless he had had the responsibility growing out of the actual “receiving, keeping and paying out of money,” while in other cases it has been held that whenever the money became subject to the order of the court the clerk’s commissions attached, although he had neither actually received, kept, or paid out any part of it. Upton v. Treblecock, 4 Dill. 232, Fed. Cas. No. 5,541; Thomas v. Railway Co. (C. C.) 37 Fed. 548; Easton v. Houston, etc., Ry. Co. (C. C.) 44 Fed. 718; Leech v. Kay (C. C.) 4 Fed. 72; Ex parte Prescott, 2 Gall. 146, Fed. Cas.

No. 11,388; Insurance Co. v. Quinn (C. C.) 69 Fed. 462; Farmers’ Loan & Trust Co. v. Dart, 91 Fed. 451, 33 C. C. A. 572; Johnson v. Southern B. & L. Ass’n (C. C.) 95 Fed. 922; United States v. Kurtz, 164 U. S. 49, 53, 17 Sup. Ct. 15, 41 L. Ed. 346. In equity and in admiralty the taxation of costs, as between the parties, is a matter of sound legal discretion, and for this reason it is said that generally an appeal will not lie alone from a decree taxing costs. Canter v. Ins. Co., 3 Pet. 306, 317, 7 L. Ed. 688; U. S. v. Brig Malik Adhel, 2 How. 209, 237, 11 L. Ed. 239; Elastic Fabric Co. v. Smith, 100 U.

S. 110, 25 L. Ed. 547; Dubois v. Kirk, 158 U. S. 58, 67, 15 Sup. Ct. 729, 39 L. Ed. 895; Kittredge v. Race et al., 92 U. S. 116, 120, 23 L. Ed. 488; Paper Bag Cases, 105 U. S. 766, 772, 26 L. Ed. 959; Gamewell Fire Alarm Tel. Co. v. Municipal Signal Co., 77 Fed. 490, 23 C. C. A. 250. But if the appeal be also upon the merits, the court, having the whole decree before it, may also consider the action of the court in this respect, upon a proper assignment of errors. The Scotland, 118 U. S. 507, 519, 6 Sup. Ct. 1174, 30 L. Ed. 153; City Bank, etc., v. Hunter, 152 U. S. 512, 515, 14 Sup. Ct. 675, 38 L.

Ed. 534; Citizens’ Bank v. Cannon, 164 U. S. 311, 323, 17 Sup. Ct. 89, 41 L. Ed. 451; Campbell Printing Press Co. v. Duplex Printing Press Co., 101 Fed. 282, 41 C. C. A. 351; The Kissinger Co. v. The Bradford Co. (decided at present session) 123 Fed. 91. In Wood v. Weimer, 104 U. S. 786, 792, 26 L. Ed. 779, there is a dictum that no writ of error lies as to cost alone. But in that case it was said, “But there are other questions, and this may therefore properly be taken up.” But in all the cases cited, except that of Wood v.

Weimer, supra, the taxation was between the parties in either admiralty or equity causes, and the only question was as to the exercise of a sound discretion in the disposition of'the costs as between the parties. The ground upon which the right of appeal was denied was because the question was not one of positive law, but of discretion. The case of Bank of the United States v. Green, 6 Pet. 25, 8 L. Ed. 307, did present a question of the construction of an Ohio statute in respect of the marshal’s poundage tax. But that case arose upon a certificate of division under

section 6 of the judiciary act of 1802 (2 Stat. 159, c. 31), which the court said did not involve any matter “arising at the trial of the cause, but was upon a mere matter arising upon the service of the execution by the marshal, and was a mere question for the Circuit Court upon a collateral contest between the marshal and the bank as to his right to fees. It was not, therefore, a case within the purview of the judiciary act of 1802.” But the decree from which an appeal was denied, here under consideration, did not involve any question of taxation of costs as between parties. The clerk claimed that under the

chapter settling fees he was entitled, as a matter of positive law, to a fixed commission. The demurrer challenged the

interpretation of

section 828 insisted upon, and denied that the clerk was entitled to any commissions as provided by that section. Upon this point the demurrer was overruled, and a decree pronounced allowing the commissions claimed. It would be most extraordinary if such a question was not subject to review, for it would place the construction of the statute settling costs and fees entirely within the arbitrary control of each court to whom the question was presented. The appellate jurisdiction of this court, under the sixth

section of the act of 1891, is very broad, and we see nothing in any of the decided cases to justify us in holding that an appeal will not lie when the decree complained of involves the construction and application of a positive statute involving the allowance of any costs at all. If the provision of

section 828 applied, the court had no discretion as to the compensation to be allowed. If it did not apply, when properly construed, to the facts of the case, it was error of law to hold that it did control, and to allow compensation according to its terms. That the decree was final and appealable, we entertain no doubt. Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157; Williams v. Morgan, 111 U. S. 684, 699, 4 Sup. Ct. 638, 28 L. Ed. 559; The City of Augusta, 80 Fed. 297, 25 C. C. A. 430; Farmers’ Loan & Trust Co. v. Dart, 91 Fed. 451, 33 C. C. A. 572. .

Finally it is sought to justify the denial of the appeal prayed upon the ground that the allowance made was not the commission provided by

section 828 for receiving, keeping, and paying out money, but a mere equitable compensation for “the extraordinary services rendered by the clerk, and for which no special allowance is provided by the statute. It is immaterial for the purposes of this application whether the decree made against the Michigan Central Railroad Company was based upon the claim as presented by the pleading to which it demurred, or was an allowance upon grounds outside of the case made by the petition, in the nature of a quantum meruit for extraordinary services rendered under an order of the court, and for which no fee is provided by the statute. The decree making the allowance, whether based upon the terms of

section 828 or otherwise, was an appealable order. The power of the chancellor to fix an allowance out of a fund in court for the services of a special master, receiver, counsel, trustee, etc., is not uncontrollable, as it would be if orders making such allowances were not subject to review. In such matters great latitude may be properly accorded to the judge administering a property, and acquainted with the services and qualifications of persons rendering special services under the court’s direction.

Nevertheless, if wrong principles be applied in settling such compensation, or an allowance grossly excessive be made, it would be competent for an appellate court to correct the wrong. The most extravagant allowances in such cases, and the grossest misapplication of correct legal principles, might go unchallenged unless the matter was subject to review by-appeal. Trustees v. Greenough, 105 U. S. 527, 528, 26 L. Ed. 1157; Williams v. Morgan, 111 U. S. 684, 4 Sup. Ct. 638, 28 L. Ed. 559; Mason v. Pewabic Mining Co., 153 U. S. 361, 14 Sup. Ct. 847, 38 L. Ed. 745.

That the allowance in this instance was to the clerk does not distinguish the appealable character of the order from one making a similar allowance to any other person acting under the court’s order, such as a special commissioner, master, receiver, or trustee. Nor is it essential to the right of appeal that the allowance shall be made from a fund in court.

If there is no fund, and the court undertakes to provide one by pronouncing a decree against one of the parties to the proceeding, and directs execution to issue, every reason exists for allowing a review which could possibly exist when an allowance is made out of a fund in which the appealing party has only an interest. The conclusion we reach is that the appeal prayed was wrongfully denied. It is accordingly ordered that a writ of mandamus issue, commanding the respondent to allow the appeal as of the day when it was denied.