5. The agreement between the parties, which is the subject matter of the petition of the Estate of Joseph Nemerov, Deceased, et al., provides that the compensation to be awarded by the Court in the above entitled proceedings be divided between R. K. Japha & Co., dealers in investment securities (15%), and counsel, Maurice J. Dix (37 1/2% of 85%), Prichard, Lawler, Malone & Geltz (37 1/2% of 85%), and Joseph Nemerov (25% of 85%). This agreement was, by its terms, subject to the approval of the court.
6. Under the provisions of the Bankruptcy Act, the agreement had to be disclosed to the Court.
7. R. K. Japha & Co. was eliminated from the agreement as a result of the action of the Securities and Exchange Commission.
8. Said agreement was submitted to the late Judge Burns, who, under the bankruptcy statute, was required to act upon the matter of the compensation of counsel in the above entitled proceedings and to award compensation upon the basis of their respective contributions to the reorganization proceeding, and the late Judge Burns made such awards to counsel.
9. The late Judge Burns made separate allowances to the lawyers mentioned in said agreement instead of a joint allowance, as requested by the Estate of Joseph Nemerov, Deceased, and deducted $ 10,000 from the amount ($ 100,000) recommended by the Securities and Exchange Commission to be awarded as compensation to respondent Dix.
10. Joseph Nemerov performed no services in the above entitled proceeding after 1946.
Conclusions of Law
1. The matter of the award of compensation to counsel, including petitioners and the respondent in the above entitled proceedings, was solely within the discretion of the late Judge Burns.
2. Judge Burns considered all matters submitted by the parties in connection with their claims for compensation and, in the exercise of his discretion, made awards to the respective parties on the basis of the service they had contributed to the reorganization proceedings, and the discretion so exercised by the late Judge Burns cannot be reviewed by this Court.
3. The order of the late Judge Burns of June 13, 1952, awarding compensation to the parties involved in the present proceeding was the subject of a petition for leave to appeal by petitioners herein to the United States Court of Appeals for the Third Circuit and said leave to appeal was denied.
4. All the matters involved in the present proceeding were or could have been submitted to the late Judge Burns and his action in awarding compensation to counsel, as the record discloses, was tantamount to a refusal to abide by the provisions of the agreement of the parties.
5. The matter now before the Court is res adjudicata.
6. This Court is without power to interfere with the action of the late Judge Burns inasmuch as the Bankruptcy Act, 11 U.S.C.A. §§ 621, 641, and 642, committed the matter of the allowance of compensation to his discretion, subject only to review by the Court of Appeals for the Third Circuit.
7. R. K. Japha & Co., having been eliminated from the agreement, and the percentage of the compensation of counsel which they agreed to pay to Japha & Co. having been thereby eliminated from the agreement, the agreement cannot be re-written by the Court and is unenforceable.
An appropriate order is entered.
© 1992-2004 VersusLaw Inc.