Oldham v. Parker (5 F.2d 682, 1925)

MEEK, District Judge.

This referee in bankruptcy, D. M. Oldham, Jr., seeks an order from the court directing and commanding George W. Parker, clerk of the court, to return and repay to him, D. M. Oldham, Jr., referee in bankruptcy, the sum of $44.45, which amount he says he was wrongfully compelled to pay to the clerk of the court by the action of one D. D.'Lamond, who examined his office at Abilene for the Department of Justice in the month of March of this year.

The said agent of the Department of Justice contended that this referee had illegally and unlawfully appropriated the sum of $44.45 to his use and benefit, in that said referee had collected the sum of 1 per cent, commission on amounts paid to attorneys as provided in section 64b of the Bankrupt Act (Comp. St. § 9648); said examiner contending and maintaining that the referee was not entitled to a commission of 1 per e.ent. on amounts paid to attorneys as attorney’s fees under section 64b of the act; that said attorneys were not creditors of the estate within the meaning of section 40a (section 9624) of the National Bankruptcy Act, relating to ’commissions paid to the referees for their services.

This petitioner and-referee contends and insists that he is entitled to the said sum of 1 per cent, commission on amounts paid as attorney’s fees, and that said sum of $44.45 is legally due and owing to him, and that it was unlawful for the said examiner to require and compel petitioner to pay into the registry of this court said sum; that acting under the advice and coercion of said examiner, this referee did on April 7, 1925, deliver to said examiner his cheek for this amount, which was payable to George W. Parker, clerk of this .court, which cheek was cashed by said clerk on the 23 d day of April, 1925, and is- now in the registry of this court.

The question raised by the petition of this referee in bankruptcy for my consideration and decision is as follows: Is a referee in bankruptcy entitled to a commission of 1 per cent, as provided by section 40 of the act on the sums disbursed by the trustee in bankruptcy in the form of attorney’s fees paid, as provided for under section 64b (3) of the Bankruptcy Act?

Section 40a of the Bankrupt Act, relating to commissions of