VARIOUS petitions for rehearing and modification of opinion have been filed in this case as well as in Myersv. Beck, Myers v. Pulp Company and Rossi v. PulpCompany, all of which were consolidated and decided concurrently. General creditors do not ask for rehearing or modification except that some of the parties petition "for further and final determination of certain issues," which we left open for further consideration. That which we shall now say regarding the several applications will apply to the four causes named.
One of the questions left open relates to the fees allowed and paid George W. Beck, presented under separate assignments of error by Rossi and George N. Sparling Coal Company, and by cross assignments by bondholders. Creditors insist that such fees are grossly excessive, unreasonable, unjust, not warranted by the law or evidence, the services rendered or the results obtained, and that such fees involve duplicate payments for precisely the same services performed as receiver and general manager. We have directed the disallowance of one item in the sum of $2,000 and shall now consider the others, consisting of the sum of $5,500 paid and allowed as receiver's fees and the further sum of $12,500 on account of compensation as general manager.
Present counsel for the receiver says that the latter "has been commended by all parties on the manner in which he took charge of what was then an insolvent *Page 532 corporation," and that his business ability is unquestioned, but no such encomiums in the records or briefs have been called to our attention, and if the corporation was insolvent when the receiver took charge, it was more so when he quit. His reports show that he conducted the business at a loss, and when he surrendered control, the estate was more deeply involved in litigation than ever, due largely to his own acts. And, aside from his reports, there is no computation of the loss of time and money to the general creditors in their incessant struggle to protect themselves from their own trustee.
[6] Beck was appointed as receiver of an insolvent corporation with orders to conduct it as a going concern with well-nigh plenary powers from the court, and a blanket injunction was issued to prevent interference with the performance of his duties. The order appointing him general manager accomplished little if anything except to increase his emoluments. The receiver's compensation is not to be measured by the number of his official titles covering the same duties. It may be added that he devoted only part-time to the pulp company business. His testimony shows that he was acting as receiver for two other companies and was also interested in a private business, although he testified that he devoted very little time to the latter. In respect to the pulp company, he said: "I spent what time was necessary at the mill, sometimes one or two hours each day, then went back to the office." This does not necessarily indicate that it was all the time that he spent on the pulp company business. He testified that he handled collections personally and solicited orders; he devoted part-time in his own office with his various enterprises, including the pulp company. Much time was consumed on legal matters, but to a large extent they were superinduced by his own unlawful acts against creditors and their resistance thereto from court to court. He argues justification in that everything he did was approved by the district court, but if this were a justification in every case, *Page 533 it would deprive this court of ultimate supervisory powers over the receiver as well as the district court. We cannot either surrender this right or avoid our obligation to direct the course of judicial procedure
[7] The record speaks for itself, and for the reasons, heretofore stated, we must direct, in addition to the disallowance of the $2,000 item, that the sum of $12,500 paid and allowed the receiver as general manager be also disallowed as excessive and unwarranted, and that he restore to the pulp company estate all sums paid him as fees or compensation in excess of the sum of $5,500. It would not be without precedent if he were deprived of all compensation (Covington v. Hawes-LaAnna Co.,245 Pa. 73, 91 Atl. 514, Ann. Cases 1915D, pages 1254-1257), but we do not deem it best to disturb the allowance of $5,500 paid him for his services as receiver. This will be in full, and will liberally compensate him for all of his work.
[8] Fees of attorney Stidger. He did not come into the case until February, 1929, long after the bondholders' stipulation had become a fixture in the district court. He calls our attention for the first time to matters not briefed before, some of which were not even abstracted, from which it appears that he was greatly handicapped and embarrassed in the performance of his duties, especially for the reason that his correct views as to the invalidity of the above stipulation were neither in accord with those of the receiver, whom he was called upon to represent, nor with the attitude of the trial court with respect to it. Their views, irreconcilable with those of this attorney in many respects, checked efforts that otherwise he might have made, and added to his burdens. The order of the district court as to the amount of fees allowed Stidger will not be disturbed, nor those of attorney Walker who appeared as special counsel in the oral argument in this court in Myers v. Beck and Myers v. Rude.
[9] As to fees allowed attorneys Ginsberg and Gobble. This cause goes back to another judge for final *Page 534 disposition as to these questions, also auditors fees and other matters. Many elements, not fully before us, may be necessarily taken into consideration in fixing such amounts, and nothing we have said should be interpreted as an attempt to interfere with the exercise of the discretion of the trial court in the final determination thereof. It will be guided by the general directions contained in the 27th paragraph of the Rossi opinion, and all persons who are not parties hereto will have an opportunity to be heard on any matter affecting their rights. We have not said that secured creditors have no right to participate in general assets in case their security is inadequate. See Erle v. Lane, 22 Colo. 273, 44 Pac. 591.
[10] The agreement of August 23, 1927, signed by Buchhalter, and others, shows that bond holders instituted the bankruptcy proceedings and had, or procured, certain creditors to file involuntary petitions against the pulp company. Later, certain general creditors filed applications for dismissal other. Some of them referred to Buchhalter and his associates as "instigators" of the proceedings, giving details; other creditors said they were "misled." The records before us fall to show that Buchhalter or his associates denied the charges, though Buchhalter objects to our use of the words "misrepresented" instead of "misled," but we used the words synonymously and we see no reason why we should not have done so in this connection. Counsel for the bondholders themselves introduced copies of some of the federal court records into this case and we must assume that they brought in all that were favorable to their cause.
No petition field herein is sufficient to convince us that we have overlooked or misapprehended any point to entitle any petitioner to a rehearing under our rule 48. We are more persuaded than ever that our decision is right. With the present additions, our opinion stands as originally written, except that we have revised paragraph 20 of the Rossi opinion as it now appears therein, to show *Page 535 further facts and authorities in support of our conclusions.
[11, 12] One of the petitions for rehearing calls our attention to the fact that since the opinion herein was announced, the trial judge has ordered a transfer of the cause to another. If so, he was wholly without jurisdiction to so order while the matter was pending in this court. In view of what we have before said, we cannot, of course, without entirely ignoring our constitutional duty to exercise "a general superintending control over all inferior courts" (Colorado Constitution, section 2, article (6), permit that this case be further controlled by the judge who has heretofore heard it. We therefore direct that, upon issuance of mittimus herein, all further proceedings herein shall be conducted before the present presiding judge of the second judicial district.
Opinion modified and rehearing denied.
MR. JUSTICE BUTLER, not having participated in the original decision in any of the four consolidated cases, did not participate in the decision of the petition for rehearing.
On Rehearing.