Br0therton v. Stone

• Decision Date: 30 November 1943
• Docket Number: No. 14722.,14722.
• Citation: 28 S.E.2d 467
• Parties: BR0THERTON. v. STONE et al.
• Court: Georgia Supreme Court

28 S.E.2d 467

BR0THERTON.

v.STONE et al.

No. 14722.

Supreme Court of Georgia.

Nov. 30, 1943.

Rehearing Denied Dee. 13, 1943.

Error from Superior Court, Fulton County; A. L. Etheridge, Judge.

Ancillary petition by Noah J. Stone and another against W. H. Brotherton, executor, to have petitioners' fees for legal services in an equity suit determined, and to secure a lien on fund which had been recovered for their clients. To review an adverse judgment, defendant brings error.

Affirmed.

The owners of a note secured by a deed sued the executor of the will of the deceased promisor for an alleged balance due of $5,899.86. Two attorneys, employed by the defendant, filed for him an answer in the nature of a cross-bill, in which they not only asked for a recovery of $2,000 upon the defendant's conveyance to the plaintiffs of certain real estate, but prayed for affirmative equitable relief by cancellation of a deed and note and by specific performance of a contract.

After several weeks of negotiation and approval of title by a title insurance company, an agreement of settlement was made, under which the plaintiffs' claim against the defendant was settled, and a net amount of $1,935 was paid into the hands of the title company for the benefit of the defendant. Upon failure to pay their fee, the attorneys for the defendant filed in the same superior court equity suit a petition, which set forth the above facts, their legal services in the case; that $100 as a retainer had been paid on their fee; and that "the [defendant] executor claims the court should name a reasonable sum to be paid said attorneys, to which the petitioners agreed, and therefore present this petition."

At the hearing on the rule nisi, granted on the filing of the attorneys' petition, the court denied a motion to dismiss on the ground that "it appears upon the face of the petition and the record" that the petitioners are not entitled to relief; andallowed a fee of $750 addition to the $100 retainer, with a lien on the fund of $1,935 for the fee allowed. A written notice to the clerk, signed by all counsel in the main original equity case, directing the clerk to mark such case as "settled and dismissed, " was filed before the hearing on the rule nisi, but after the order granting the rule nisi and setting the matter down for hearing.

As the bill of exceptions recites, it appeared without dispute at the hearing that the $1,935 "was being held in escrow by [the title company] for said defendant and said attorneys as their rights and interests might appear"; that court costs had been paid out of said fund; that said "attorneys admitted in said hearing that there had been an express contract * * * fixing their fees at $750 in the premises, but the defendant denied the contract following the settlement, and that it was thereupon agreed between the parties that reasonable attorneys' fees should be fixed by the court"; that "plaintiff in error does not hereby except upon any ground of insufficiency of evidence to sustain the value of the attorneys' fees adjudged by the court, and the admissions herein set out (in the foregoing paragraph) having bearing merely upon the question of the right of said attorneys to recover upon its being conceded that all allegations of their petition which are not in conflict with said admissions are entirely true and the value of their services was properly proved as alleged, and said paragraph includes all evidence having bearing upon said admissions." Although there is an exception to the judge "trying * * * said matter without a jury, " his certificate recites that "no ruling was invoked by counsel or made by the court as to whether their matter should be tried by a jury."

N. T. Anderson, Jr., of Atlanta, for plaintiff in error.

Noah J. Stone and G. H. Howard, both of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Justice.

1. On this ancillary petition, by the defendant's attorney in an equity case, to fix a reasonable fee for services rendered in the suit by recovering a sum of money, which was being held as custodian by a title insurance company for the defendant and the attorneys "as their rights and in terests might appear, " there is no merit in the exception to the judge's passing on the matter without a jury irrespective of the question sought to be raised, especially since the judge...