Connor v. Ashley

• Decision Date: 17 April 1900
• Citation: 35 S.E. 546,67 S.C. 305
• Parties: CONNOR v. ASHLEY et al.
• Court: South Carolina Supreme Court

35 S.E. 546

67 S.C. 305

CONNOR

v.ASHLEY et al.

Supreme Court of South Carolina.

April 17, 1900.

INFANTS—ACTION—ATTORNEY'S FEE—REFERENCE—NOTICE—VOIDABLE ORDER.

1. Action by an infant by guardian ad litem does not abate by the infant coming of age pending it, but may, without any amendment, be continued by the infant electing to proceed with the action, and her election is sufficiently shown by the infant receiving the fruits of the judgment entered after she came of age.

2. Fees of the attorney for infant plaintiffs are properly fixed by reference in the action in which rendered.

3. All the parties interested should have notice of reference, in an action by infants, to fix the fees of their attorney therein; but, though they have no notice thereof, the order confirming the master's report fixing the fees is not void, but only voidable, being made in a case where the court had jurisdiction of the subject-matter and of the parties, and disclosing no infirmity on its face.

Appeal from common pleas circuit court of Barnwell county; Ernest Gary, Judge.

Action by A. B. Connor against Mary M. Ashley and others. Judgment for defendants. Plaintiff appeals. Reversed.

The decree of the circuit judge and the exceptions thereto are as follows:

"The facts of this case will appear from a statement of the records in the cause. On the 12th day of July, 1889. Judge Witherspoon granted an order in the case of Mary M. Ashley et al. against W. A. Holman, as executor of the last will and testament of William Ashley, deceased, in the following words: 'It appearing to the satisfaction of the court that A. B. Connor is entitled to a fee for professional services rendered the plaintiffs in the above-entitled action, on mo-tion of said A. B. Connor, Esq., it is ordered that it be referred to G. Duncan Bellinger, Esq., master, to hear and determine what would be a reasonable fee for said A. B. Connor for said services.' On the 15th day of July, 18S9, the master filed his report as follows: To the Honorable Court of Common Pleas: Pursuant to the above order, I have taken the testimony of two respectable attorneys of the bar as to what would be a reasonable fee for A. B. Connor, Esq., for professional services, and find that the sum of live hundred dollars would be such reasonable fee.' On July 15, 1889, the presiding judge granted another order confirming said report, in the following form: 'Upon reading and tiling the report of the master herein, and on motion of Mr. Connor, it is ordered that the same be, and is hereby, confirmed.' On the same day Judge Witherspoon granted another order, confirming a report of the master recommending that it be decreed 'that said defendant pay to said plaintiff Mary Myrtle Ashley, who is now of age, one thousand dollars; to the guardian of Harriet Irene Ashley, minor, one thousand dollars; and that the land held by them as aforesaid be vested in them, free of all liability to account for same, and that the defendant pay the costs of these proceedings.' The order confirming this report is as follows: 'Ordered and decreed that said report be, and hereby is, confirmed and made the order of this court. Further ordered that said defendant pay over said funds and the costs herein to the master within ninety (90) days from notice of the filing of this order. It is further ordered that the parties hereto have leave to apply to the court for any further order that may be necessary in the premises, and that out of said funds the master pay A. B. Connor, Esq., the fee for his services as reported by said master.' Subsequent to this order the executor, W. A. Holman, satisfied the claims of Mary M. Ashley and Irene Ashley by a compromise agreed upon between the said executor and the devisees, and had their claim satisfied. Upon this state of facts the plaintiff brings this action. When the cause was called for a hearing in the circuit court for Barnwell county, the defendants M. M. Ashley, Irene Ashley, and W. A. Holman demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The presiding judge sustained the demurrer as to the defendant Holman, and dismissed the plaintiff's complaint as to him, but overruled the demurrer as to his co-defendants. Both parties appealed to supreme court from this order. See Connor v. Ashley (S. C.) 27 S. E. 473. The supreme court reversed the order of the circuit court, sustaining the demurrer as to the defendant W. A. Holman, and sustained so much of the order as overruled the demurrer as to his co-defendants. In reading the opinion of the court in this case, the court says: 'While the facts alleged in the complaint do not show that he is en titled to such judgment, they nevertheless show that he is entitled to relief. The complaint charges the defendants with bringing about satisfaction of the judgment therein mentioned through collusion, in order to prevent the payment of his fee. This allegation of fraud gave the court jurisdiction to exercise its equitable powers, and, if the facts are true as alleged (upon which this court, of course, does not express its opinion), then the satisfaction of the judgment should be declared a nullity, and the plaintiff should be allowed to enforce his rights under said judgment.' From the decision of the supreme court it will be seen that the question left open for the circuit court is the question of fraud. As I construe the decision of the supreme court, the allegation of fraud is all that gives this court jurisdiction, and that jurisdiction arises out of its equitable prerogative. In order, then, to determine this question, it will be necessary to inquire if the plaintiff has such a judgment as would give him a lien, or such an equitable or legal status that he could assert or set it up as the foundation of his claim or contention.

"It seems to me that the case of Hubbard v. Camperdown Mills, 25 S. C. 499, 1 S. E. 5, is directly in point. In the case just cited two orders were granted by Judge Wallace, referring it to the master to inquire and report what would be a suitable fee to be paid Messrs. Wells & Orr, attorneys for the plaintiff, for their services in this action, and also what would be a suitable fee for Messrs. T. Q. and A. H. Donaldson, attorneys for the Camperdown Mills and Hamlin Beattie, as receiver. In pursuance to each of these orders, just as in the case now being tried, the master reported that he had held a reference, and from the evidence adduced he found that twenty-five hundred dollars ($2,500) would be a reasonable and proper fee for Messrs. Wells & Orr, as attorneys for the plaintiff, and that two thousand dollars ($2,000) would be a reasonable and proper fee for Messrs. T. Q. and A. H. Donaldson, as attorneys for the Camperdown Mills and Hamlin Beattie, receiver. Upon hearing these reports, Judge Wallace granted orders confirming the same, and directing the receiver to pay these gentlemen the amount reported as proper fees for them out of the funds in his hands as such receiver. From these orders an appeal was taken to the supreme court, and that court reversed the said orders. The learned justice who delivered the opinion of the court, after citing authority for the position taken, availed the opportunity to say: 'But while this may be sufficient to distinguish this case from Nimmons v. Stewart, 13 S. C. 445, we desire to take this occasion to express our dissatisfaction with so much of that case as gives countenance to the idea that a reference to ascertain the amount of a fee to be charged on a fund under the control of the court should ever be ex parte. The parties interested in thefund have a right to be heard both by evidence and argument, if they so desire, before the property or the fund to which they are entitled is subrogated to a charge of any kind, and hence notice of such a reference is always necessary. The case of Nimmons v. Stewart was very imperfectly presented to the court, and therefore the point as to the character of the reference may not have been given to it.' The counsel for the plaintiff recites and relies upon the case of Nimmons v. Stewart, above referred to. But, from this criticism of the principle decided in that case, I cannot feel warranted in putting much stress upon it. In fact it seems to me that it is practically overruled by the case of Hubbard v. Camperdown Mills, just quoted.

"The plaintiff, however, contends that, the order in this case not having been appealed from, the question is now res adjudicata, and it is now too late to raise any objection to the orders above set forth. The case of Ex parte Fort, 36 S. C. 19, 15 S. E. 332, settles the law to the contrary. In that case the supreme court, in passing upon the effect of a similar order, uses this language: 'It is not necessary to appeal from an order fixing attorney's fees to raise the question of jurisdiction, and under the question of jurisdiction included the power of the circuit judge to make an order not contemplated by the action to which she was a party, without notice to her of such order.' The order of reference obtained by the plaintiff was purely ex parte. The defendants were not notified as to the holding of such reference, and the report of the master does not give the testimony upon...