Boyd County v. Cisco

• Decision Date: 20 February 1931
• Parties: Boyd County v. Cisco.
• Court: United States State Supreme Court — District of Kentucky

237 Ky. 534

Boyd County v. Cisco.

Court of Appeals of Kentucky.

Decided February 20, 1931.

1. Counties. — Court properly allowed fee to taxpayers' attorney, payable out of amount of excess salary recovered and collection from county commissioners.

2. Costs. — Where attorney's fee is contingent on amount of recovery, probability of recovery should be considered by court in fixing amount of fee.

3. Attorney and Client. — Attorney should not be allowed to recover fee greater than that named in contract of employment.

4. Appeal and Error. — Judge's finding on conflicting evidence regarding amount of fee and terms of contract between attorney and clients could not be disturbed.

Appeal from Boyd Circuit Court.

THOMAS BURCHETT for appellant.

A.N. CISCO and DYSARD & TINSLEY for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE LOGAN.

Affirming.

John Barnett and W.W. Quillen, citizens and taxpayers of Boyd county, suing for themselves and all other taxpayers of the county, instituted suit against William Caldwell, John Mock, and W.H. Carp, commissioners of Boyd county, seeking to recover of them $12,600, which it was alleged had been paid to them in excess of the salary to which they were entitled. The litigation involved the construction of certain acts regulating the salaries of commissioners in counties containnig a city of the second class. The taxpayers contended that the salary was limited to a sum not exceeding $600 per annum, while the commissioners contended that the salary was limited to a sum not exceeding $1,800 per annum. The circuit court decided in favor of the commissioners, but, upon an appeal to this court, the judgment was reversed, with directions to enter a judgment in conformity with the prayer of the petition of the taxpayers. Barnett et al. v. Caldwell, 231 Ky. 514, 21 S.W. (2d) 838. Upon the representation of the mandate, the former judgment of the circuit court was set aside and a new judgment entered in favor of the taxpayers for $12,600, or $4,200 against each commissioner. The judgment then recited that A.N. Cisco had represented the taxpayers as their attorney in the litigation in the circuit court and in the Court of Appeals, and that as a result of the litigation there had been a recovery of $12,600, and, upon his motion and upon the evidence offered in his behalf, the court adjudged that he should have a fee equal to 30 per cent. of that part of the judgment which should be collected, the same to be paid by the fiscal court as the judgment was collected. The fee was not fixed at 30 per cent. of $12,600, but 30 per cent. of so much of the judgment as should be paid into the treasury of Boyd county.

When the judgment was entered, the county attorney of Boyd county appeared and filed exceptions to the fee allowed to Cisco. The exceptions set out two grounds of attack on the fee allowed: One that the taxpayers who instituted the suit employed Cisco to look after the litigation through all of the courts at an agreed fee of $200, and the other was that the fee allowed was excessive and largely in excess of fees as regulated by the Boyd County Bar Association. The taxpayer plaintiffs filed their affidavits in support of the exceptions, in which it was stated that they employed Cisco and he agreed to perform all the necessary services for a fee of $200. Cisco...