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September 25, 1958

Joseph J. O'DONOHUE, IV, Plaintiff,
The FIRST NATIONAL BANK OF PHILADELPHIA, individually and/or trustee, etc., Defendant and Counterclaimant for Interpleader, Louis G. Cohen and Magbeth D. Cohen, Joseph Hoffman and Freda Hoffman, Julian R. Wilheim and Lois E. Wilheim, Claimants, Additional Defendants. United States of America, Intervenor

The opinion of the court was delivered by: DUSEN

I. History of The Case and Statements of Facts

On June 5, 1953, Joseph J. O'Donohue, IV, instituted this action against The First National Bank of Philadelphia (now The First Pennsylvania Banking and Trust Company), hereinafter called the 'bank,' individually and as trustee under a Trust Deed dated 4/15/48, alleging that payments made by the bank, claimed to be under the terms of certain assignments, were improper and also seeking to recover certain funds in the bank's custody as trustee. The moving party in instituting the action was Julian R. Wilheim, Esq., acting under an irrevocable power of attorney for the named plaintiff, and Mr. Wilheim engaged Mr. Clapp, of the District of Columbia Bar, as his trial attorney. *fn1" The bank thereupon interpleaded Julian R. Wilheim, Lois Wilheim, the Hoffmans, and the Cohens as claimants to the same funds and paid the funds, which, with subsequent accretions, aggregated $ 9,600, into the registry of the court.

 The case was listed for trial on three separate dates (May 17, 1955, November 29, 1955, and October 8, 1956) and continued at the request of counsel at calendar calls in February and April 1956. On the morning of October 8, 1956, when the case was called for trial, the following counsel stated that they represented the following parties:

 William L. Matz, Esq., for the plaintiff

 Harry Normal Ball, Esq., for Lois E. Wilheim

 William Barclay Lex, Esq., for the First Pennsylvania Banking and Trust Company

 William T. Adis, Esq., for Louis G. & Magbeth D. Cohen

 Arthur R. Littleton, Esq., for the United States of America

 After a conference in chambers, at which counsel for plaintiff requested the court to delay the start of the trial until the next morning so that plaintiff's Washington, D.C., counsel, Newell Clapp, Esq., and Julian R. Wilheim (representing himself) could be present, a jury was sworn and the trial was recessed until the next morning.

 At the opening of court on October 9, 1956, all of the above counsel were present except for Mr. Littleton. In addition, Newell Clapp, Esq., was present for plaintiff and Julian R. Wilheim, Esq., appeared representing himself. It was also stated to the trial judge that Robert K. Greenfield, Esq., was appearing as an observer. At a conference in chambers, the parties stated that they thought they could settle the case and the trial judge stated '* * * in the event counsel have not been able to settle the matter by 2:30 p.m. * * * they will be prepared to go forward with the trial at that time * * *.' About 11 a.m., counsel returned to the court room and moved for the withdrawal of a juror on the ground that 'the case has been settled in a manner satisfactory to all parties.' It was also stated that counsel were 'preparing a stipulation which will take a day or two to get completed * * * (but) that will terminate the case.'

 The trial judge then said: 'And that is agreeable to all counsel who are present; am I correct in that?' Mr. Wilheim answered: 'That is correct, Your Honor.' A juror was withdrawn and the case was marked settled on the Clerk's docket.

 On March 13, 1958, Robert K. Greenfield, Esq., entered his appearance for Louis G. and Magbeth D. Cohen. In March of 1958, counsel were given notice by Robert K. Greenfield, Esq., as attorney for Louis G. and Magbeth D. Cohen, that there would be presented to the court for approval on March 20, 1958, an order for disposition of the $ 9,600 in the registry of the court and for entry of judgment in favor of the bank, with prejudice. The proposed order was supported by a motion, to which there was attached an agreement dated July 29, 1957, signed by all the parties to this action, except for the bank and the United States of America, which agreement contains the following language in paragraphs 1 and 2: '1. The sum of ninety-six hundred ($ 9,600.00) Dollars or more on deposit with the District Court of the United States as aforesaid is to be disbursed as follows: "(a) To the United States of America on account of the lien filed by it against O'Donohue $400.00 "* (b) Julian Wilheim, Esq., on account of his claim*(see below) 375.00 "(c) Harry Norman Ball, Esq. for services 525.00 "(d) Zoob and Matz, Esqs., for distribution as follows: to J.J. O'Donohue $750; balance on account of fee and costs of Zoob and Matz and Newell Clapp, Esq. 1,600.00 "(e) Louis G. Cohen and Magbeth D. Cohen -- balance remaining in said account.


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