Opinion
[No. 41, October Term, 1952.]
Decided December 5, 1952.
EQUITY — Enrolled Decree — Could Not Be Set Aside by Supplemental Proceedings. A petition for the payment to petitioner of a sum of money paid into the court registry, for the determination of who was entitled thereto as one-half of the broker's commission on the sale of real property, could not be made to serve the purpose of a bill to set aside an earlier decree ordering appellants to convey the property to the vendee under a contract of sale with the parties from whom appellants had purchased the property. The vendee was not a party to the supplemental proceedings, and neither facts constituting fraud, nor facts to be shown by newly discovered evidence, nor why the evidence was not discovered at the time of the original suit were stated. An enrolled decree, moreover, cannot be set aside merely because there was perjured testimony. p. 143
WITNESSES — Perjured Testimony of, in Previous Proceeding — Attempt to Show, Not Permitted. In a hearing on a petition by a real estate broker for payment of one-half of the broker's commission on the sale of real property, the trial court properly refused to permit appellants to show that testimony given by the broker in a previous suit for specific performance brought by the vendee under a contract for the sale of the property was "perjured". p. 143
ATTORNEYS — Conflict of Duties Not Shown. In Maryland the practice of naming counsel as trustees under decrees is almost universal; in a proper case the same person may be allowed commissions as trustee and a counsel fee as attorney. Thus, where an attorney represented the vendee in his suit for the specific performance of a contract for the sale of real property, and the attorney was appointed trustee under a decree of the court for the purpose of conveying the property to the vendee if defendants failed to do so, and the attorney subsequently filed a petition on behalf of a real estate broker for the payment to petitioner of a sum of money, paid into the court registry so that the court could determine who was entitled thereto as a brokerage fee on the sale, there was no actual conflict — or risk of conflict — between the attorney's duties as trustee, as counsel for the broker, or as counsel for the vendee originally. p. 144
ATTORNEYS — Fee for Opposing Certiorari Application in Supreme Court Not Excessive. A counsel fee of $150.00 for services in opposing an application for certiorari in the Supreme Court of the United States was not excessive or improper. p. 144
J.E.B.
Decided December 5, 1952.
Appeal from the Circuit Court for Prince George's County (MARBURY, J.).
Petition by Edward N. Lightbown for the payment to him of a sum of money paid into the court registry for the determination of who was entitled thereto as a brokerage fee, after the court had passed a decree ordering Joseph J. Blondell and Gordon Louk to convey to the vendee under a contract of sale certain real property purchased by Joseph J. Blondell and Gordon Louk from the vendors under said contract with notice of the vendee's prior equity. From an order directing payment to petitioner of the sum paid into the court registry as a brokerage fee, allowing a counsel fee of $150.00 to Nicholas Orem, Jr., the trustee appointed under the previous decree, and sustaining demurrers to, or dismissing, or both, certain answers and petitions, Joseph J. Blondell and Gordon Louk appeal.
Order affirmed.
The cause was argued before MARKELL, C.J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
Joseph A. DePaul and Joseph G. Lindamood, Jr., with whom was Gordon Louk, in proper person, on the brief, for the appellants.
Nicholas Orem, Jr., with whom were Duckett, Gill Orem on the brief, for the appellees.
This is an appeal from an order ( a) directing payment to petitioner Lightbown of $265.20 paid into the registry of the court pursuant to a decree of August 2, 1949, ( b) allowing a counsel fee of $150.00 to the trustee under the decree for legal services to himself as trustee in opposing an application for certiorari in the Supreme Court of the United States, and ( c) sustaining demurrers to, or dismissing, or both sustaining demurrers to and dismissing, sundry nondescript answers and petitions of appellants, mentioned by name in the order but not set out in either brief or appendix.
This case originated in a bill of one Turover against appellants and a Mrs. Leapley and husband (both now deceased) for specific performance of a contract of sale of land by the Leapleys to Turover effected by exercise of a written option from the Leapleys obtained by Turover, through Lightbown as a real estate broker, before sale of the same property at the same price, $5,304 less commissions, by the Leapleys to appellants. The court, by its decree of August 2, 1949, granted specific performance against appellants, as purchasers with notice of Turover's prior equity. This court affirmed. Blondell v. Turover, 195 Md. 251, 72 A.2d 697.
Turover's option agreement provided, "If sale is consummated as a result of this option, seller agrees to pay Edward N. Lightbown 5% commission in cash at the time of settlement." Lightbown, though not a party, was the principal witness in the original case. The facts stated in the opinion of this court indicate that the option contract was procured by Lightbown. The decree of August 2, 1949 directed appellants to execute a deed to Turover and appointed Nicholas Orem, Jr. (plaintiff's counsel) trustee to convey the property to Turover if appellants failed to do so, upon payment by Turover of $5,304, from which costs were to be deducted and the balance to be paid to appellants, "and from which sums shall also be deducted the sum of $265.20, being the one-half of the 10% broker's commissions credited to defendants Louk and Blondell in their purchasers' settlement statement as shown on page 6 of the depositions filed herein, and the sum of $265.20 thus deducted shall be paid by plaintiff into the Registry of this Court; provided, however, that this Court retains jurisdiction in the premises for the purpose of determining who is entitled to receive said sum of $265.20 held in the Registry of this Court, or in the hands of the Trustee hereafter mentioned, and any peron claiming the same may file his petition herein for payment of the same to him, whether or not he has heretofore been a party to this proceeding." Appellant's contract of purchase with the Leapleys provided for a broker's commission of ten per cent, of which half was paid to Dunn Company, brokers, and half credited to appellants. Appellants thus paid the Leapleys ninety-five per cent of $5,304, out of which the Leapleys paid Dunn five per cent.
After affirmance of the decree, we are informed (though none of the proceedings is before us) that appellants and others filed in the United States District Court a bill against Lightbown, Orem, and Orem, trustee, for injunction against conveyance of the property pursuant to the decree. After dismissal of this bill for want of jurisdiction, another was filed, dismissed on similar grounds, and on appeal to the United States Court of Appeals the dismissal was affirmed. Later application to the Supreme Court for certiorari was made and was denied, Louk v. Friedman, 342 U.S. 827, 72 S.Ct. 51. Meanwhile this case had been referred to an auditor, counsel fees had been allowed for services in the federal court litigation (except the application for certiorari) and the auditor's accounts making such allowances and allowances for other costs and expenses had been finally ratified and no appeal had been taken. Incidentally the amount on hand out of the $5,304 purchase price had diminished to $3,245.74.
In February, 1952 Lightbown filed his petition for payment to him of the $265.20 paid into the registry of the court pursuant to the decree of August 2, 1949. After the sundry proceedings above referred to, the order now under review was signed on March 27, 1952. It is not clear why in the decree of August 2, 1949 the $265.20 was not ordered paid to Lightbown, in view of Lightbown's testimony in the original case. Nor is it clear why, in view of the provision for further proceedings, Lightbown was asked by his counsel only whether he was the Lightbown mentioned in the option agreement, and whether he had been paid any commission arising out of the option agreement or the sale to Turover or by or on behalf of either of the Leapleys. However, as the court, counsel and litigants well knew, in the original case to which the instant proceedings are supplemental, Lightbown's testimony had shown, as the opinion of this court indicates, that he had procured the option agreement and the resulting sale. Moreover in the instant proceedings he was asked, on cross-examination, "You stated to the court that you brought about the signing of this option. Is that true?", and he answered, "That is true."
By "answers and petitions" appellants separately alleged that Lightbown's testimony at the original trial was "evasive, inconclusive, untrue and incomplete", that since the decree of August 2, 1949, they had "come into possession of conclusive evidence that said testimony of * * * Lightbown was perjured", and prayed a hearing on Lightbown's petition and that appellants "be given opportunity to advance proofs in open court in substantiation of the facts herein sworn on oath." Apparently appellants' major objective in the maze of their proceedings in response to Lightbown's petition was to set aside the decree of August 2, 1949 on the ground that it was based on perjured testimony of Lightbown. In what respect Lightbown's testimony was perjured, and what is the nature of the new evidence, is wholly undisclosed. In the lower court counsel for one of the appellants said, "If Mr. Lightbown, through his attorney, seeks to find out what the new evidence is, I believe he is entitled to a bill of discovery or to the use of depositions under the discovery rules as set down by the Court of Appeals." This statement aptly presents appellants' nonchalant attitude towards the task of setting aside an enrolled decree. Obviously Lightbown's petition for payment of $265.20 cannot be made to serve the purpose of a bill to set aside the decree of August 2, 1949. Turover is not a party to these supplemental proceedings. Neither facts constituting fraud, nor facts to be shown by newly discovered evidence, nor why the evidence was not discovered three years ago, are stated. Moreover, an enrolled decree cannot be set aside for fraud merely because there was perjured testimony. Maryland Steel Co. v. Marney, 91 Md. 360, 373, 46 A. 1077; Adleberg v. Stryjewski, 200 Md. 346, 89 A.2d 592.
The same notion of setting aside the original decree is the basis of appellants' contention that the court would not permit them to cross-examine Lightbown. No question is presented as to the English or the American rule as to scope of cross-examination. Nowhere may a witness be asked, on cross-examination or at any other stage, the color of his eyes — or the color of his testimony in a previous case — for the sole purpose of calling another witness to contradict him, unless in some way the color of his eyes, or his previous testimony, is material in the instant proceedings. The few questions of fact material in the instant proceedings were those that were asked Lightbown and answered, viz., whether he procured the option agreement and the sale and whether he had been paid. The court properly cut off attempts to prove his original testimony "perjured".
Besides objecting to Orem's counsel fee for services in opposing the application for certiorari in the Supreme Court, appellants filed petitions for "removal" of Orem as counsel for Lightbown and as trustee under the decree, on the ground that he cannot "in all faith to the court, represent both the court as trustee and Mr. Lightbown as attorney." We pass all question as to the power of the court to "remove" an attorney for a litigant in the absence of actual misconduct of the attorney. Whether in appointing trustees under decrees, or receivers, counsel for one or more litigants shall be selected may be a choice of evils — between the risk of trying to serve two masters and the certainty of increased expense. Pritzker v. Stern, 187 Md. 499, 504, 51 A.2d 69. In Maryland the practice of naming counsel as trustees under decrees is almost universal. In a proper case the same person may be allowed commissions as trustee and a counsel fee as attorney. Taylor v. Denny, 118 Md. 124, 84 A. 369. In the instant case we see no actual conflict — or risk of conflict — between Orem's duties as trustee and as counsel for Lightbown — or as counsel originally for Turover. The fee of $150 for services in opposing the application for certiorari in the Supreme Court is not excessive or improper. As we are unable to imagine any basis for the litigation in the federal courts — still less for grant of certiorari — the counsel fee might no doubt have been saved by filing no brief and trusting the Supreme Court to deny certiorari. However, appellants could not make this point, and we cannot adopt it as a measure of duty or a guide for conduct for trustees.
Order affirmed, with costs.