Opinion
15975
July 28, 1947.
Appeal from Common Pleas Circuit Court of Richland County; G. Duncan Bellinger, Judge.
Action by B.C. Baker, individually and on behalf of all other stockholders of the Mutual Loan Investment Company in like circumstances who come in and bear their proportionate share of the expenses, against the Mutual Loan Investment Company, wherein Frank B. Gary, Jr., was appointed as receiver of the Mutual Loan Investment Company. The receiver sought to have Hunter A. Gibbes pay over to the receiver all funds which had been received by Hunter A. Gibbes as liquidating agent for the sale of certain assets of the Mutual Loan Investment Company. From an order in favor of the receiver, Hunter A. Gibbes appeals.
Order affirmed.
Mr. Hunter A. Gibbes, of Columbia, for Appellant, cites: As to attorney's rights, under a contract with client, and his lien, on judgment obtained or funds received, for his services: 6 C.J. 740; 139 S.C. 5, 137 S.E. 192; 170 S.E. 901; 4 Cyc. 984, 1005; 142 S.C. 559, 141 S.E. 107; 185 S.C. 942; 147 Ind. 137, 45 N.E. 601, 46 N.E. 587; 115 Ind. 201; 201 S.C. 199, 22 S.E.2d 249; 196 S.C. 528, 14 S.E.2d 21; 24 S.C. 240; 68 S.C. 236; L.R.A. (N.S.) 525.
Mr. Thomas H. Pope, of Newberry, for Respondent, cites: As to failure to appeal a finding of fact operating as an estoppel: 3 S.E.2d 243, 191 S.C. 14; 4 S.E.2d 286, 191 S.C. 323. As to receiver being an officer of the court and charged with the rights of the several interested classes of persons: 118 S.E. 303, 125 S.C. 214. As to the statutory method for the sales of substantially all of a corporation's assets being exclusive: 13 S.E.2d 596, 196 S.C. 466; 18 S.E.2d 584, 199 S.C. 5. As to appellant attorney having no lien for services in the instant case: 164 S.E. 753, 166 S.C. 270; 34 S.E.2d 482, 207 S.C. 97.
The order of Judge Bellinger follows:
This matter came on to be heard before me at Chambers on the 21st day of February, 1947, upon rule to show cause why the defendant, Hunter A. Gibbes, should not be required to turn over to the plaintiff as Receiver of the Mutual Loan Investment Company all of the assets of the Mutual Loan Investment Company in his hands including an amount of Three Thousand Three Hundred ($3,300.00) Dollars paid to him as the alleged Liquidating Agent for the sale of certain assets of the said corporation together with an amount of Seventy-seven and 74/100 ($77.74) Dollars representing cash assets of said corporation.
The defendant filed an extensive return indicating that he had on hand assets of the said corporation as set forth above less the sum of Three Hundred Forty-seven ($347.00) Dollars paid out by him on account of claims against the said corporation plus the further sum of Five Hundred ($500.00) Dollars which he had paid out to himself as an attorney's fee under a certain agreement with the Board of Directors for his services as Liquidating Agent.
Upon hearing from Thomas H. Pope, Esq., Attorney for the plaintiff, and the defendant representing himself, I conclude that the defendant is not entitled to withhold the sum of Five Hundred ($500.00) Dollars which he has paid to himself as an attorney's fee but that he should be required to pay over all the assets of the corporation in his hands to the receive, including the sum of Five Hundred ($500.00) Dollars paid to himself as an attorney's fee and that he should further be required to account to the receiver for the other debts of the corporation which he has paid. I specifically am not passing upon the merits or priority of any claims which the defendant Gibbes may file with the receiver on account of his attorney's fee.
It is therefore ordered, That the said defendant, Hunter A. Gibbes, do forthwith turn over and deliver to Frank B. Gary, Jr., as Receiver of Mutual Loan Investment Company all of the assets of the said company in his hands including Five Hundred ($500.00) Dollars claimed by the said defendant as an attorney's fee and do also furnish to the receiver an itemized verified statement setting forth the debts of the corporation which the said defendant claims to have paid other than attorney's fee.
And it is so ordered.
July 28, 1947.
This appeal is from an order of Honorable G. Duncan Bellinger, passed February 21, 1947, in consequence of a rule issued against Hunter A. Gibbes, respondent-appellant, requiring him to show cause why he should not deliver to Frank B. Gary, receiver of the Mutual Loan and Investment Company, a corporation, certain assets of that company which came into Gibbes' hands as liquidating agent for the company prior to the institution of the proceedings which resulted in the receivership. The order (which will be reported) required Gibbes to turn over to Gary, receiver, all the assets of the company, including Five Hundred ($500.00) Dollars which Gibbes, as liquidating agent, claims as fee, and to account for the moneys expended by him in the payment of debts of the corporation. Both Gibbes and the receiver have appealed.
After careful consideration, this Court is not disposed to disturb the findings of the trial Court. All exceptions are, therefore, overruled, and the order referred to affirmed.
BAKER, C.J., and FISHBURNE, STUKES, TAYLOR, and OXNER, J.J., concur.