Butler v. Fuller

• Decision Date: 20 May 1920
• Docket Number: 6 Div. 74
• Parties: BUTLER et al. v. FULLER et al.
• Court: Alabama Supreme Court

85 So. 539

204 Ala. 272

BUTLER et al. v. FULLER et al.

6 Div. 74

Supreme Court of Alabama

May 20, 1920

Appeal from Circuit Court, Cullman County; O. Kyle, Judge.

Bill by Asa B. Fuller and others, individually and as executors against R.E. Butler and another, for the sale of surface rights for division among joint owners. From decree granting relief, respondents appeal. Affirmed.

Percy Benners & Burr, of Birmingham, for appellants.

F.E St. John, of Cullman, for appellees.

GARDNER J.

Appellants seek a reversal of the decree of the court below only upon the question of the excessiveness of the fee allowed for complainants' solicitor. It is insisted that, while the evidence of the attorneys testifying in the cause is without dispute, the fee allowed was a reasonable and proper sum as customarily charged for services of such nature, yet this was not binding upon the court, citing Lee v. Lomax, 219 Ill. 218, 76 N.E. 377; Dinkelspiel v. Pons, 119 La. 236, 43 So. 1018; Lilly v. Robinson, 106 Ark. 571, 153 S.W. 820, and a vigorous attack is made in argument here presented upon the amount of the fee upon the ground of excessiveness.

That the services of counsel for complainants were for the benefit of the common estate, and properly payable out of the funds from the proceeds of sale under the provisions of section 3010 of the Code of 1907, is not questioned, but only the amount thereof as being excessive. As said by this court in Bidwell v. Johnson, 191 Ala. 195, 67 So. 985, the trial court should exercise the greatest caution in fixing allowance of attorney's fees in matters of this character, that no injustice be done; but at the same time the wording of the statute has clearly indicated that much must be left to sound judicial discretion.

We may concede for the purpose of this case much of the argument of counsel for appellants, and that neither this court nor the court below will be necessarily bound by the opinion evidence presented in the cause; yet we are not persuaded that under the circumstances here presented the decree should be disturbed. The witnesses were examined in regular form, after due notice given counsel for respondents, and the testimony regularly taken and proof made without dispute as to the proper allowance to be paid the solicitor for complainants for his services in the cause. Respondents did not question this proof at that time or subsequently, offering no testimony to...