HAYNSWORTH, Chief Judge:
In litigation arising out of a land transaction in Florida, the plaintiffs, Gibbs, obtained a judgment in Florida against the defendant, Leroy J. Blackwelder, for a sum in excess of $35,000. Unable to collect the judgment in that State, they brought suit upon the Florida judgment in the United States District Court for the Eastern District of Virginia. There, the issue became the availability of certain lands, titled in the name of Mrs. Blackwelder, for the satisfaction of the husband's debts. The lands are said to be of very substantial value and the claim of the Gibbs one of several claims against the husband which will be collectible only if the lands standing in the name of the wife are available for their satisfaction.
The District Court was under the impression that the request for the allowance of fees for the plaintiffs' attorneys was for the benefit of the attorneys and not for the benefit of the plaintiffs. He said in his memorandum opinion:
Now, at least, it is clear that the request for the allowance of fees is for the benefit of the plaintiffs. It is founded upon the principle that when one who, while establishing his own claim, also establishes the means by which others may collect their claims, a chancellor in equity may award counsel fees to the trail blazer out of the property made available for the satisfaction of all claims. The principle is applied so that the one who led in hewing the path to victory is not left saddled with extensive attorney's fees, which need not be incurred by his more timid fellows who held back until the fruits of the pioneer's success were laid before them. The principle is succinctly stated in Sprague v. Ticonic National Bank, 307 U.S. 161, 165-7, 59 S.Ct. 777, 779-780, 83 L.Ed. 1184.
Here, Mrs. Blackwelder claimed the lands as hers and sought to show that certain funds which were used in their acquisition originated with her. In this proceeding the whole story has been brought to light and the District Court has held that the husband does have an equitable interest in the lands, and that they are available for the satisfaction of his debts. The plaintiffs say that there are other creditors of the husband who are now prepared to assert their claims, thus reaping for their own benefit the harvest the plaintiffs have cultivated through this litigation.
Under these circumstances, equity would seem to require careful consideration of whether or not the plaintiff's attorneys in this action should be allowed reasonable fees payable out of the defendants' land, or its proceeds, so that the plaintiffs alone will not have to bear the burden of the major attorneys' fees for services which have redounded to the benefit of all of Mr. Blackwelder's creditors. This may be done by fixing a reasonable value upon the services rendered by the attorneys to all claimants who are creditors of Mr. Blackwelder and who may now obtain with relative ease the satisfaction of their claims out of the lands. The fees thus allowed should be credited by the attorneys against the contractual obligation of the plaintiffs to pay fees to them, so that, to the extent of the plaintiffs' contractual obligations for attorneys' fees, any allowance of fees out of the proceeds of the land will redound to their benefit and to their relief from the disproportionate burden of attorneys' fees they otherwise would bear in comparison with other creditors of the husband.
Under these circumstances, we think it appropriate that the case be remanded to the District Court for further consideration of the claim for attorneys' fees in the light of the principle of Sprague v. Ticonic Bank, which, of course, has found expression elsewhere.
It is apparent that the District Judge thought that the fees suggested by the attorneys as appropriate were unreasonable and excessive That may be, and, if he is of the same opinion after further inquiry and consideration in light of this declaration of his power to award attorneys' fees and their appropriateness, he may disregard their suggestion and allow fees in an amount which the Court is satisfied is reasonable.
It is also apparent that the District Judge thought that the plaintiffs' principal attorney, himself, had made the proceedings more complicated than necessary and he had other criticism of his conduct.
Such matters the District Court may appropriately take into consideration in fixing a reasonable value on the services rendered by the plaintiffs' attorney. Mr. Blackwelder's conduct, unquestionably, made the task of the attorneys more difficult and the performance of their duties more onerous. This would tend to warrant the allowance of fees in a larger amount than would otherwise be appropriate. On the other hand, if the plaintiffs' attorneys, themselves, made the litigation more complicated and costly than need have been,
We think the District Court appropriately awarded small fees for the plaintiffs' costs in requiring the defendants to answer questions. However, we think the order which required the plaintiffs' attorney, Millman, to pay to the defendants $250, plus the cost of transcribing certain depositions, was inappropriate. Mr. Millman had advised the plaintiffs to refuse to answer certain questions on deposition which he thought improper. Under those circumstances, under Rule 37(a) of the Federal Rules of Civil Procedure, the defendants might have applied to the Court for an order requiring the plaintiffs to answer the questions propounded. In the event they had obtained such an order and the Court had required the plaintiffs to answer those questions which had not been answered, the Rule provides that the Court shall require the refusing party to pay the reasonable costs incurred in obtaining the order requiring the answers, together with reasonable attorneys' fees incurred in that connection.
Here, the defendants neither sought nor obtained an order requiring the plaintiffs to answer the questions they refused to answer upon the advice of Mr. Millman. They have incurred no costs and have paid no attorneys' fees for which they may be reimbursed under the provisions of Rule 37.
To the extent that the judgment below required the attorney, Millman, to pay certain fees and costs to the defendants, it is reversed. The judgment insofar as it disallows general attorneys' fees to the plaintiffs' attorneys is vacated and the case remanded for further proceedings not inconsistent with this opinion.
Reversed in part; vacated in part and remanded.