Opinion
Proceeding in the matter of Oscar W. Hogsett, alleged bankrupt. Proceeding to secure dismissal of the involuntary petition in bankruptcy was successful and the prevailing party claimed his costs. On motion by Norman Feintech to strike the item of attorneys' fees from the memo of costs and disbursements.
Motion denied.
Zuckerman & Stein, of Los Angeles, Cal., for petitioning creditor, Norman Feintech.
John C. Miles, of Los Angeles, Cal., for H. K. Fenton.
COSGRAVE, District Judge.
In a successful proceeding to dismiss the involuntary petition in bankruptcy, the prevailing party claimed his costs, and gave notice to the Clerk to tax the same, pursuant to District Court Rule, Southern District of California, 10. No appearance in the proceeding before the Clerk was made by petitioner here, who had filed the involuntary petition in bankruptcy, and the Clerk accordingly allowed the costs as claimed, including the $50 as attorneys' fees. Contrary to the opinion held by the Court at the time of the oral argument, there seems to exist authority for the inclusion of attorneys' fees as recoverable costs. Gilbert's Collier on Bankruptcy, Fourth Edition, page 74, and cases there cited.
A review of the decision of the Clerk is provided for in Rules of Civil Procedure for the District Courts, rule 54(d), 28 U.S.C.A. following section 723c, and District Court Rule number 10 above referred to. Petitioner gave notice that he will move the District Court ‘ to strike from the memo of costs and disbursements filed by the said H. K. Fenton the item of $50.00 attorneys' fees included therein.’ No error appears in the action of the Clerk, as it seems that item is recoverable under the authority above cited. Petitioner's motion must therefore be denied, and it is so ordered.