Eggert v. Pacific States Savings & Loan Co.

TRAYNOR, J.

On October 28, 1938, John Eggert, as a holder of a Fidelity Definite Term Certificate commenced this action against the Pacific States Savings and Loan Company and the State Guaranty Corporation, on behalf of himself and some 1,500 other certificate holders. The complaint in-

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eluded a prayer that plaintiff’s attorneys of record he allowed attorneys’ fees for filing and prosecuting the action. The court held the suit a proper class action, and in its judgment for Eggert and the other certificate holders whom he represented decreed that they recover from the defendant Pacific States Savings and Loan Company the sum of $1,851,740.95 to be apportioned pro rata among them after deduction of expenses and fees. The court expressly reserved jurisdiction to determine the fees to be paid plaintiff’s attorneys. The complaint and the judgment incorporated by reference an exhibit containing the names of the holders of the outstanding certificates and the number and face value of the certificates held by them. The names of Jessie C. Kelley and Dorothy C. Given appeared in the exhibit. The court appointed a receiver to facilitate the collection and payment of the judgment. The court also made an order, directed to plaintiff and all other persons interested, to show cause why it should not make an order fixing reasonable attorneys’ fees. Notice of the order was published daily until the return date. The court fixed the fees of plaintiff’s attorneys at 15 per cent of the total recovery, excluding the share of the Building and Loan Commissioner. Subsequently Eggert petitioned for an order directing the receiver to obtain and turn over the balance of the money due to him and the other certificate holders after deducting the 15 per cent allowed the attorneys. At the hearing on this petition John C. Campbell, representing Jessie C. Kelley and Dorothy C. Given, Definite Term Certificate Holders, appeared and objected to the granting of the petition insofar as it concerned the payment to the attorneys. The court made an order granting the petition, however, and Jessie C. Kelley and Dorothy C. Given filed a notice of appeal for themselves and all other holders of Fidelity Definite Term Certificates not otherwise represented by counsel from the order fixing the amount of the attorneys’ fees and from the order directing the receiver to pay to plaintiff’s attorneys 15 per cent of the amount recovered by the holders of the Fidelity Definite Term Certificates. They also petitioned this court for a writ of supersedeas to stay the execution of these orders until the determination of their appeal. Plaintiff Eggert and his attorneys have moved that the appeal be dismissed as to all certificate holders other than Jessie C. Kelley and Dorothy C. Given.