Mortimer v. Pacific States Savings & Loan Co.

There is no controversy concerning the $2,000 allowed appellant for his services performed in the year 1940. The order making that allowance was final, and in full for appellant's services from the date of his appointment May 10, 1940, to and including December of the same year.

There is a difference of opinion regarding the order *Page 167 allowing appellant $3,000 for his services performed in 1941. Plaintiff and the present receiver contend that the trial court was right in holding that said order, like that of 1940, was final, and that said allowance was in full for the year 1941. This contention is based chiefly upon an order made in open court December 9, 1941, and entered in the court minutes of that date in the following language: "It is hereby ordered that the Receiver pay Messrs. Badt Wilson, attorneys representing the Receiver the sum of $3,000.00 out of the funds now in his hands for the calendar year of 1941, and the Court reserves the right to fix any future fees for services performed in the future."

It is appellant's contention that said order was not final, and that said allowance was not necessarily in full for his 1941 services. This contention is based upon a formal order prepared by appellant, dated December 10, 1941, and signed by the trial judge and filed on that date. This order, omitting preliminary recitals and the signature and official title of the judge, reads as follows:

"That there is hereby allowed and said Receiver is ordered to pay out of the funds in his hands to Messrs. Milton B. Badt and Orville R. Wilson as compensation for their services as attorneys for the Receiver, for the calendar year of 1941, the sum of $3,000.00, subject to the right hereby reserved by said Court to consider the matter of any additional allowance at the close of the Receivership, or when the proper occasion should arise.

"Dated this 10th day of December, 1941, per minute order of December 9, 1941."

In view of certain decisions of this court, I think the position taken by plaintiff and the present receiver is the correct one. Silva v. Second Judicial District Court, 57 Nev. 468,66 P.2d 422; California State Tel. Co. v. Patterson, 1 Nev. 150; First Nat. Bank in Reno v. Fallon, 55 Nev. 102, 26 P.2d 232; Gottwals v. Rencher, 60 Nev. 35, 47, 92 P.2d 1000, 98 P.2d 481, 126 A.L.R. 1262; Coleman v. Moore McIntosh, 49 Nev. 139, *Page 168 241 P. 217; Central T. Co. v. Holmes M. Co., 30 Nev. 437, 97 P. 390; Kehoe v. Blethen, 10 Nev. 445. See also the following texts, all of which cite one or more Nevada cases: 3 Bancroft's Code Pr. and Rem., p. 2232, nn. 7, 8, 9, p. 2234, n. 16, p. 2249, nn. 18, 19; 1 Freeman on Judgments, 5th Ed., p. 75 n. 1, pp. 80-81, nn. 1, 2, 3, 4, p. 109, n. 5, p. 110, n. 8; 34 C.J. 44-45; 14 Standard Proc. p. 971, n. 31, p. 988; 23 Cyc. 835, 836; 18 Encyc. of Pl. and Pr. pp. 429, 430, 438, n. 2; 17 Am. and Eng. Encyc. of Law 768, n. 5. While the foregoing authorities relate to judgments and decrees, they are applicable to orders.

In Silva v. Second Judicial District Court, supra, the trial court, in rendering judgment from the bench, reserved jurisdiction to modify a divorce decree with respect to custody and support of minor children. Said reservation was omitted from the formal written decree. This court held, in mandamus proceedings, that said omission was a clerical error, and that the trial court had the power and it was its duty to amend the decree to conform to the judgment actually rendered in open court. The court said in part [57 Nev. 468, 66 P.2d 425]: "There can be no question as to the omission of the reservation in this case being clerical and not the result of judicial error. * * * Nor can there be any question that the pronouncement from the bench is the final decree. California State. Tel. Co. v. Patterson, 1 Nev. 150; First National Bank in Reno v. Fallon,55 Nev. 102, 26 P.2d 232, with which the decree signed by the judge and entered should correspond."

In the Silva case, two cases relied on by appellant in the case at bar were distinguished by this court as follows: "The rulings in State ex rel. Jensen v. Bell, 34 Wash. 185, 75 P. 641, and McFadden v. McFadden, 22 Ariz. 246, 196 P. 452, relied on by respondents are distinguishable from the question presented here. In each of those instances the court held that the formal judgment signed by the judge should be accorded greater *Page 169 weight than the minute entry of the clerk, and the former was deemed conclusive of what was actually adjudicated. But the case before us is not one of conflicting evidence in which every intendment should be drawn in favor of a formal decree. The minute entry in this case is corroborated by the court reporter's transcription of the proceedings, and confirmed by the recollection of the trial judge."

In Gottwals v. Rencher, supra, a minute entry was uncertain in its terms and did not truly and correctly state the oral decision actually rendered by the trial court. That court ordered said entry to be amended so as to conform to the decision actually rendered from the bench. This court on appeal [60 Nev. 35,98 P.2d 486, 126 A.L.R. 1262], upheld said action of the trial court, saying that the latter "merely corrected the record so as to make it speak the truth as to what was actually decided." In the same case the court further said: "The court's statement that the minute entry was uncertain in its terms and not the true or correct statement of what occurred, must be taken as true. Moreover, it is corroborated by testimony of the clerk that the said transcript contained only a partial statement of what the court had said and that she did not remember what else he had said. In any event, a trial court in rendering its oral decision is not bound by what the clerk or stenographer has taken down, but may rely on its own memory as to what was actually decided. It may, in the exercise of its discretion, refresh its memory in this respect from any source it deems reliable."

In Linville v. Scheeline, 30 Nev. 106, 93 P. 225, 227, this court, after saying it had repeatedly been held in Nevada that the decision of the court is the announcement by the court of its judgment, and is distinct from the findings went on to say: "Were this question a new one, it might be open to serious question, as many authorities, under similar statutes, take a contrary view. The practice in this state, however, of regarding the *Page 170 oral announcement by the court of its judgment as the decision, has been so thoroughly recognized by the bench and bar that it would not now be proper to announce a different rule."

Without quoting from California State Tel. Co. v. Patterson,1 Nev. 150, attention is directed to pages 155, 156 and 159 of the opinion.

The minute order of December 9, 1941, is clear and certain in its language, and free from all ambiguity. It correctly records the order actually made in open court on that date. We have the statement of the trial judge to that effect, made while he was questioning appellant at the hearing on January 29, 1943. It appears in the following excerpt from the record:

"By the Court:

"Q. Mr. Badt, I understand you are petitioning now for a readjustment or reallowance of these fees over this whole period? A. I am asking particularly for, your Honor, two periods, two phases, the period of 1941 and of 1942 to Mr. Russell's death is particularly involved by reason of the fact that the allowance last year in December 1941 was without prejudice to additional allowance at the time of the closing of the receivership or if proper occasion should arise.

"Q. I think, Mr. Badt, you don't have a very clear understanding. I made a minute order from the bench fixing your fees for 1941 in the sum of $3,000.00. A. Yes, your Honor.

"Q. Two-hundred fifty dollars a month for twelve months, and the only reservation that I made in that was that I reserved the right to fix any fees for future services, having in mind that in the event there was litigation, or something out of the ordinary, that would justify, in my opinion, a much larger fee. * * *"

This statement of the trial judge, expressly corroborating the minute order of December 9, is entitled to the same weight as the statement of the trial judge in Gottwals v. Rencher, supra, and the recollection of the trial judge in the Silva case. If the minute order *Page 171 had not correctly recorded the order actually made from the bench, it may be presumed that the trial judge would not have confirmed and approved it by making said statement. The fact that the minute order has been corroborated by the trial judge, and the further fact that no attempt has been made to show that it failed in any respect to correctly record the order made in open court, afford convincing proof that said minute entry correctly records that order.

What has just been said is not to be taken as meaning that in construing an order or judgment made by the trial court this court can consider that court's opinion as to the meaning of such order or judgment. We cannot, for example, in construing the written order of December 10, take into consideration the fact that the trial court in its ruling of February 27, 1943, held that the order allowing appellant $3,000 for his 1941 services was a definite and final order. Cook v. Smith, Tex. Civ. App.,96 S.W.2d 318; Taylor v. City of Guelph, 39 Dom. Law Rep. 416, 419; 42 C.J. 556, n. 27(b). But the statement made by the court at the hearing on January 29, 1943, was not an expression of opinion. It was a statement of fact made in open court during a hearing at which one of the questions under consideration was whether the order allowing compensation for 1941 services was or was not a final order. And it will be observed that in making the statement the court did not merely say that the minute order read thus and so; what it did say was, "I made a minute order from the bench * * *." Here we have a statement emanating from the memory and recollection of the trial judge. It is contained in the bill of exceptions which constitutes a part of the record on appeal, and relates directly to the matter under consideration. It is not an expression of opinion as to what the minute order means, or as to how it should be construed. That order calls for no construction, as it is clear, certain and complete in all particulars.

If, in this case, the order actually made in open court on December 9 had included a reservation of the right *Page 172 to make additional allowances in the future for services performed in 1941, but such reservation had been omitted in the formal order of December 10, there would have been, as in the Silva case, a clerical error which could and should have been corrected by the trial court. But there was no such reservation in the order actually made on December 9; on the contrary, the reservation relates exclusively to allowances for services to be performed in the future.

Suppose in the present case the court on December 9, 1941, had made an order from the bench allowing appellant $3,000 for his services performed in that year, expressly reserving the right, however, to make additional allowances in the future for such 1941 services. Suppose further that the minute order of that date clearly and correctly recorded said order actually made in open court. If the court on the following day had prepared, signed and filed a formal written order, "per minute order of December 9, 1941," allowing $3,000 to appellant in full for his 1941 services and reserving the right to make additional allowances in the future, but only for services to be performed in the future, the latter reservation, under previous decisions of this court, would not control or supersede the one actually made in open court on the preceding day. To hold otherwise would simply mean that after a clear and certain order had been made in open court and correctly recorded in the court minutes, such order could later be substantially changed by the trial judge, notwithstanding district court rule XLV, without a hearing and without notice to anybody, by the mere signing and filing of a formal written order. An order made in open court is of as much force and effect as one made by written memorandum. Carter v. J.W. Silver Trucking Co., 4 Cal. 2d 198, 47 P.2d 733. And while in some states orders must be signed by the judge, such is not the law in Nevada. What was actually decided on December 9 is the important thing, and the order made from the bench on *Page 173 that day could not later be substantially changed, without notice or hearing, by the mere signing of a written decision howsoever formal. If the written order of December 10 should be construed to mean that the trial court reserved the right to make additional allowances in the future for services performed in 1941, such reservation would constitute a substantial change in the order actually made the preceding day — a change which the trial court would be without power or jurisdiction to make. Rico Consol. Min. Co. v. Rico Exploration Co., 23 Ariz. 389,204 P. 138.

A written order will not always prevail over a minute order. Where there is conflicting evidence as to what was actually ordered there is some reason for saying that a written order will prevail over a minute order, provided the former is itself clear in its language and free from ambiguity, and provided further that there be no other evidence of more cogent force than the written order. After all, the written order as well as the minute order are simply evidence as to what was actually decided. Where all the evidence shows clearly that the minute order correctly records what was actually ordered, the written order will not prevail. It is not at all necessary that there be formal orders in cases of this kind. Very often formal orders are not filed, and while it is commendable practice to follow the minute entry with a formal order signed by the judge, such practice is not required by any statute or court rule in this state. In a number of western states the judgment of the court is not, as in Nevada, the pronouncement from the bench. In Washington, for example, the supreme court says that "the formal judgment as entered is the judgment of the court irrespective of memorandum opinions or minute entries." Landry v. Seattle, P.A. W.R. Co., 100 Wash. 453,171 P. 231, 232. Two of the cases cited in support of this proposition are Jensen v. Bell and Gould v. Austin, relied on by appellant in this case. Thus the Washington cases *Page 174 are not only distinguishable for the reason stated in the Nevada case of Silva v. Second Judicial District Court, but also because of the rule announced in Landry v. Seattle, P.A. W.R. Co., supra. It is noteworthy also that in the case of McFadden v. McFadden, 22 Ariz. 246, 196 P. 452, the supreme court of Arizona, in laying down the rule that where there is conflict between the entry made by the clerk in the minutes and the solemn judgment of the court, the terms of the latter should be given force and effect, rather than of the former, cites only Washington cases which, for reasons stated herein, are not applicable in this jurisdiction.

In speaking of the minute entry of December 9 and the formal order of December 10, it is not to be understood that the court made two final orders relating to compensation for 1941 services. There could not be two such final orders any more than there can be two final judgments in the same action. Nevada First Nat. Bank v. Lamb, 51 Nev. 162, 271 P. 691; Low v. Crown Point Min. Co.,2 Nev. 75. The actual adjudication now under consideration became final when the order was announced in court on December 9. If the written order of December 10 does not, to use the language of the Silva case, correspond with the pronouncement from the bench on December 9, then insofar as it substantially changes the latter, it is void.

In Colorado the rule has been enunciated that the formal record entry of a judgment is binding, until corrected, though different from the judgment actually pronounced or inconsistent with a memorandum opinion or minute entry. Forker v. Hopkins,64 Colo. 325, 171 P. 361; Bates v. Hall, 44 Colo. 360, 98 P. 3. These cases were both decided under a special statute, the Colorado irrigation act, which provides that the district court shall "cause to be entered a decree determining and establishing the several priorities of right, by appropriation of water. * * *." 3 Colorado Statutes, Annotated (1911), sec. 3284; 4 Kinney on Irrigation and Water Rights, Second Ed., secs. 1791, 1792. To apply *Page 175 such a rule in the case at bar would be giving the written order of December 10 a status which it does not have under the decisions of this court, or under any statute or court rule in this state. Such a holding would in effect make the written order, rather than the pronouncement from the bench, the final order of the court. Suppose, in this case, the hearing on December 9 had been reported by the official reporter of the district court, and his or her notes showed that the order actually rendered by the court on December 9 was in all respects correctly recorded in the minute entry of that date; if the rule in the Colorado irrigation cases were to be applied in such a situation, the order of December 10 would be conclusive evidence of what was actually decided by the court on the previous day, notwithstanding the other evidence showed conclusively, as a matter of fact, that the actual order was as recorded in the minute entry.

The formal order of December 10 was not corrected in the lower court, and because of this it is said that this court is without power to correct it. The question before us, however, is not whether this court can correct the order of December 10 or direct the lower court to do so; the real question is, what order was actually made on December 9? In order to determine the latter question this court, in my opinion, has the power to construe the written order, regardless of whether it can correct that order or direct the trial court to do so. More than one-third of the reply brief is devoted to the proposition that the written order should prevail over the minute order; yet appellant, whose ability is unquestioned, does not advance the argument that the written order must be accepted as final because neither plaintiff nor the present receiver asked the lower court to correct it. And why was it incumbent on either of them to do so? Plaintiff naturally would not ask to have it corrected, because he maintains that it means the same as the minute order; and the present receiver relies upon the rule laid down in a long line of Nevada cases, *Page 176 that the judgment as pronounced from the bench is the final judgment, not the formal judgment as entered, as held in Washington and some other states. It may be noted here that although appellant was in court when the order of December 9 was made, he has never made any attempt to have the minute order of that date corrected. It would have saved considerable trouble if these matters had been straightened out in the trial court, but the fact that they were not should not prevent this court from placing a proper construction on the written order of December 10; and in any event there is no more, if as much, reason why plaintiff or the present receiver should have asked for a correction of the written order than appellant for a correction of the minute order. The order actually made in open court and correctly recorded in the minutes was the final order in this matter, not the written order of December 10. Again, if appellant's construction of the written order is correct, then, as has been pointed out, that portion of said order which makes a substantial change in the order of December 9 is void, and this court should not therefore be bound by it whether corrected or not.

Much of what has been said is based upon the assumption, made for purposes of discussion only, that the order of December 10 is free from ambiguity and that appellant is correct in his construction of that order. It is clear that if the written order is ambiguous, neither the rule that where there is a conflict between a minute order and a written order the latter will prevail, nor the other rule that if a written order is not corrected in the lower court it will be binding on this court, is applicable here.

The writer does not agree with appellant's contention that the formal order of December 10, 1941, should be construed as reserving in the trial court the right to make additional allowances in the future for services performed in 1941. The more natural meaning of this order is that the reservation relates to allowances to be *Page 177 made for services to be performed in the future. Conceding, however, that said order may also bear the construction placed upon it by appellant, we then have a manifestly ambiguous order, though it could very easily have been worded so as to be plain and clear in its meaning, one way or the other. On the one hand, by reason of the words "for the calendar year 1941" and the expression "when the proper occasion should arise," the reservation in the order can reasonably and naturally be read as relating only to allowances for services to be performed in the future. On the other hand, by reason of the words "subject to the right reserved by said Court to consider the matter of any additional allowance," it is possible to construe said reservation as relating to further allowances for services performed in 1941.

Where an order or judgment is ambiguous in its terms, the whole record may be examined to remove the doubt. This is the rule in Nevada, as well as in most other jurisdictions. Aseltine v. Second Judicial District Court, 57 Nev. 269, 273, 62 P.2d 701; Roraback v. Roraback, 38 Cal. App. 2d 592, 101 P.2d 772; Vasiljevich v. Radanovich, 138 Cal. App. 97, 31 P.2d 802; Watson v. Lawson, 166 Cal. 235, 135 P. 961; Atlantic, Gulf Pac. Co. v. Wright, 11 Cal. App. 179, 104 P. 460; 14 Cal. Jur. 959; George v. Jenks, 197 Wash. 551, 85 P.2d 1083; Evans v. City of American Falls, 52 Idaho 7, 11 P.2d 363; Quigley v. McIntosh, 110 Mont. 495, 103 P.2d 1067; Hale v. Independent Powder Co., 46 Okla. 135,148 P. 715; Reaves v. Turner, 20 Ok. 492, 94 P. 543; In re Kehl's Estate, 215 Wis. 353, 254 N.W. 639; Upton v. Merriman,122 Minn. 158, 142 N.W. 150; Whaley v. Matthews, 136 Neb. 767,287 N.W. 205; Sutton v. Schnack, 224 Iowa 251, 275 N.W. 870; State ex rel. Booth v. Beck Jewelry Enterprises, 220 Ind. 276,41 N.E.2d 622, 141 A.L.R. 876; Hofer v. Hofer, Ohio App., 42 N.E.2d 165; Freeman on Judgments, Fifth Ed., secs. 76, 77; Black on Judgments, Second Ed., sec. *Page 178 123; 15 Standard Encyc. of Proc. 93, n. 27; 3 Bancroft's Code Pr. and Rem. 2273, 2274, n. 12.

It may be said that the words "subject to the right hereby reserved" imply that the reservation relates to further allowances for the year 1941, because why should the court do a vain thing by reserving a right which it unquestionably has without the making of such a reservation? But it will be observed that the same type of expression was used in the minute order, which beyond all doubt relates to allowances for future services only. It is evident that the trial court "reserved the right" to do things which it had the power to do in any event, as well as things which it might not have power to do without the making of such reservations. If, after the word "allowance," the words "for services to be performed in the future" or the words "for said year" or "for said year 1941" had been inserted, the formal order would have been plain and unambiguous, notwithstanding its meaning would have been entirely different depending on which words were inserted. In either event there would have been no room for construction.

In the State of Washington where, under some circumstances, a minute order is superseded by a later written order (State v. Bell, supra), it is equally well settled that where a judgment is ambiguous, resort may be had to the entire record to remove the ambiguity (George v. Jenks, supra). What we have in the case at bar is a minute order, entirely free from ambiguity and correctly recording the order made in open court, followed by an ambiguous formal order which, if no reference be made to other parts of the record, can be interpreted as having precisely the same meaning as the minute order, but may also admit of other and different interpretations. In such a situation I am satisfied that the written order should be construed to harmonize with the plain and certain meaning of the minute order. As indicated in the Silva case, it should correspond with the pronouncement from the bench. *Page 179

Where there is ambiguity, as in the formal order of December 10, the court should endeavor to ascertain the real intention of the author of the order. As said in Aseltine v. Second Judicial District Court, supra [57 Nev. 269, 62 P.2d 702], "In other words, was it the intention that the judgment and decree might be modified in accordance with the provision relative to a reduction of the allowance to the plaintiff?" That "the court's real intention" should be inquired into is recognized in State v. Bell, heretofore mentioned in this opinion. And in Cundy v. Weber, S.D., 300 N.W. 17, 21, the Supreme Court of South Dakota said: "The function of the process of construction is to determine the intention and meaning of the author of a judgment or other instrument." In the present case the real intention of the written order cannot possibly be determined without reference to other parts of the record; but when such reference is made, the intention becomes clear.

It is true that the question of ambiguity in the order of December 10 has not been raised by counsel on this appeal, unless by implication when counsel for plaintiff stated that the minute order is unequivocal. That the question was not directly raised is quite understandable. Plaintiff naturally would not raise it because, as we have seen, it contends that the order means the same as the minute order. That the present receiver has not raised the question may be accounted for by the fact that in support of his contention that the order allowing compensation for 1941 services was a final order, he relies upon the Nevada decisions hereinbefore mentioned.

The contention that the order of December 1941 was a final one is supported by a further consideration appearing in the record. In support of the application made in the fall of 1941 for an order allowing attorney's fees, appellant was permitted to and did make a very full showing. His direct testimony alone fills twenty-seven pages of the record. He does not contend that he overlooked anything in giving that testimony, which was *Page 180 first carefully reduced to writing before being read in court. The trial court thus had before it all the evidence that appellant desired to offer. On that showing the court allowed $3,000 for appellant's services "for the calendar year of 1941." Under these circumstances what occasion would be likely to arise in the future calling for the making of any additional allowances for services performed in 1941? The implication seems clear, from the use of the words "when the proper occasion should arise," that possible litigation or other matters requiring extraordinary services was intended by the expression "proper occasion."

At the hearing on January 29, 1943, the trial court allowed testimony relating to appellant's services before, as well as during the year 1942. Does this show that the court placed the same construction on the signed order of December 10 as that contended for by appellant? I think not, for at least two reasons. First, testimony covering 1940 was permitted, as well as 1941 and 1942; yet no one contends that the trial court or any one else ever considered the order for 1940 services other than final, or that the allowance for those services was not in full. Second, one of the grounds of appellant's motion to vacate was based on the proviso in the written order of December 10, 1941. It was the court's duty to consider this as well as the other grounds upon which the motion was based. It was natural, therefore, to permit testimony covering the 1941 services because, if appellant could convince the court that the 1941 order was not final, then the court would want to consider the testimony relating to the services performed during that year as well as in 1942.

It is not necessary, of course, that orders such as that under consideration be made orally in court. Such orders, as well as judgments, may be made or rendered in writing, signed by the judge and filed with the clerk. Had the order fixing the 1941 allowance been made in this way, it would have been of the same force and effect as one pronounced from the bench and correctly recorded *Page 181 in the minutes; but the court, without notice or hearing, could not have legally made any substantial change in such formal order, either by an amended written order or by oral pronouncement in open court.

For the reasons given it is my opinion that the formal order of December 10, 1941, as well as the order of December 5, 1940, was a final order, and that the allowance made therein was in full for appellant's services performed during the calendar year 1941. No appeal having been taken by him from either of said orders within the time prescribed by law, he is, in my opinion, concluded by them. 53 C.J. 379, n. 39.

There remains for consideration the question whether the trial court abused its discretion in not allowing appellant more than $2,500 for his services performed during the first ten months of 1942. The order making this allowance was made by the court of its own motion on December 11, 1942. The reasons given by the judge for making the order at that time without first having a hearing after due notice are sufficient, in my opinion, to show that the court did not take such action through any intentional arbitrariness. Nevertheless I think the order was erroneous at least, if not void. State v. Wildes, 37 Nev. 55, at page 69,139 P. 505, 142 P. 627; Heater v. Boston Montana Corporation,75 Mont. 532, 244 P. 501; In re Magner, 173 Iowa 299, 155 N.W. 317; Merchants' Bank v. Crysler, 8 Cir., 67 F. 388; Ritter v. Arizona Cattle Co., 34 Ariz. 278, 271 P. 25; First Nat. Bank v. Stewart Fruit Co., D.C., 17 F.2d 621; Colkett v. Hammond, 101 Wash. 416,172 P. 548; Ruggles v. Patton, 6 Cir., 143 F. 312; 1 Clark on Receivers, Second Ed., sec. 642(i); High on Receivers, Fourth Ed., p. 959, n. 75.

In his notice of motion to vacate the order of December 11, appellant stated that he desired to submit evidence as to the value of his services and as to a reasonable fee to be fixed and allowed therefor. In the same document he gave notice that at the time of presenting said motion to vacate he would also move the *Page 182 court "for an order fixing a day certain for the hearing of the matter of the determination of a reasonable fee to movant for his services, as aforesaid." At the hearing on January 5, 1943, appellant informed the court that if the motion to vacate should be granted, he would like to have the hearing of his application for increased compensation fixed for January 29, 1943. At said hearing on January 5, 1943, the court erroneously declined to set aside the order of December 11, 1942, but at the same time said: "However, as I say, Mr. Badt, if you feel that you have been treated unfairly or unjustly in this matter, I am willing to give you full opportunity to present any proof that you have that would justify an increase in the attorney fee but I do not feel on the showing made at this time that this order should be vacated in view of the fact that there are very respectable authorities who hold that the court is not required to take any testimony. So it will be the order that the order will stand at this time fixing the attorney fee, but it will be further ordered that a day will be set fixing a time when Mr. Badt will be given an opportunity to present proof to show that the attorney fee is unjust or unreasonable."

The court proceeded to set January 28, 1943, as the day for this hearing, and then, upon appellant's application, changed the date to January 29, 1943. On January 8, 1943, the court signed and filed a written order made pursuant to the minute order of January 5. Omitting the preliminary recitals, the first two paragraphs of this order read: "1. That, pending the further order of this court, the motion to vacate said order of December 11, 1942, so far as the same pertains to the fixing of attorney fees, be and the same hereby is denied. 2. That the motion to fix a day certain for the hearing of the determination of reasonable attorney fees in the premises be and the same hereby is granted, and that Friday, the 29th day of January 1943 at ten o'clock A.M. (following the hearing of the Receiver's next account, also to be set for said date) is hereby fixed as *Page 183 the time and place at which the movent, Milton B. Badt, may present proof to show that the attorney fee heretofore fixed and allowed was unjust or unreasonable, or that any additional allowance should be made." Pursuant to the court's direction, appellant served notice of said hearing on all parties concerned, and when the matter came on for hearing on January 29, 1943, appellant, addressing the court, said, "May it please the Court, this was the time set for the hearing of my own application for allowance of additional attorney fees. * * * At this time, with the Court's permission, I shall testify from my typewritten pages if I may be sworn." Appellant then proceeded to testify at length, and called three outstanding attorneys as experts who also testified in his behalf. At the conclusion of the January 29 hearing the court took appellant's motion under submission, and on February 27, 1943, after first stating its reasons, ordered "that the said order entered by this Court on December 11, 1942, will stand as entered."

If appellant had appealed from the order refusing to set aside the order of December 11, 1942, and had declined to take advantage of the opportunity given him to be heard on January 29, 1943, I would agree that there should be a reversal and the case sent back so that the trial court, after due notice and hearing, could fix a reasonable amount in compensation for the services rendered by appellant in 1942. Such was the action taken by the Supreme Court of Washington in Colkett v. Hammond, supra. But instead of following that course, appellant accepted the opportunity given him by the court to make a full showing, and not only testified at length himself but called three outstanding attorneys as experts who testified in his behalf. And he has asked this court, not to send the case back so the lower court can make a valid order in lieu of that of December 11, 1942, but to grant him, on this appeal, an increase in the amount of his compensation. Under these circumstances, while it may be that the order of December 11, *Page 184 1942, should not be regarded as having been validated by the subsequent proceedings, the form of the order of February 27, 1943, should, in my opinion, be disregarded insofar as it purports to provide that the order of December 11 stand. The hearing on January 29, 1943, was had after due notice given to all parties concerned, and was referred to by appellant himself as "the hearing of my own application for allowance of additional attorney fees." The order made on February 27, 1943, should therefore, I think, be regarded as a valid, final order, fixing the amount of appellant's compensation for his services performed in 1942. As I view the matter, appellant is entitled to have the court, on this appeal, determine whether the trial court abused its discretion in not fixing a higher amount than $2,500 for those services.