Corley v. Corley
| Decision Date | 11 April 1903 |
| Citation | 44 S.E. 132,53 W.Va. 142 |
| Parties | CORLEY v. CORLEY et al. |
| Court | West Virginia Supreme Court |
Submitted January 23, 1903.
Syllabus by the Court.
1. An order, entered on the verdict of a jury on an issue out of chancery, that the defendant merely recover costs of the plaintiff, is not a final judgment, decree, or order, giving the right to appeal.
Appeal from Circuit Court, Braxton County; W. G. Bennett, Judge.
Bill by A. W. Corley, executor, against Sarah C. Corley and others. Judgment for plaintiff. Proceedings by Bland & Bland against Louisa W. Kelly to secure attorney's fees. Judgment for Kelly, and Bland & Bland appeal. Dismissed.
W. E Haymond and Bland & Bland, for appellants.
B. P. & V. B. Hall and A. W. Corley, for appellee.
A chancery suit in the circuit court of Braxton county for the settlement of the estate of W. L. J. Corley, instituted by A W. Corley, executor, against Sarah C. Corley, the widow, and others, in 1885, was still pending in 1898, and Louisa W Kelly (née Corley), not having then received from the executor all that was due her under the will of her father, employed E. S. and C. H. Bland, partners in the practice of the law, doing business as Bland & Bland, to prosecute her claim to final settlement in said suit, which they did, and procured a decree to be entered in her favor on the 22d day of January, 1901, for the sum of $956.72, subject to a credit of $200. Immediately afterwards, a controversy arose between Mrs. Kelly and her attorneys about counsel fees, they claiming from her $350, and she contending that she owed them nothing. She had paid them about $200, which sum, she insisted, was all she owed them under the contract of service. They admitted the payment of the $200, but insisted that that sum was due them for services in procuring the transfer of something over $8,000 from the hands of her guardian in West Virginia to those of her guardian in Pennsylvania, to which state she had removed.
Mrs. Kelly, by a written notice to the executor, forbade payment by him to her attorneys, and they thereupon gave him notice, in writing, that they claimed and would assert an attorney's lien upon the fund in his hands for their fees. Thereupon the executor presented his petition to the judge of the circuit court, showing that J. S. Hyer had caused an attachment against Mrs. Kelly for $313.05 to be levied upon her estate in his hands; that soon afterwards Bland & Bland had given notice of their claim of an attorney's lien on the fund for fees, amounting to $350; that later the sheriff of Braxton county had commenced a proceeding against him for the collection out of said fund of taxes due from Mrs. Kelly, amounting to $103.71; that there was a dispute among the parties as to their rights of priority in respect to said fund, and that Mrs. Kelly was endeavoring to have an execution issued against him for the sum decreed to her; and praying that she be enjoined from suing out an execution or any process for the collection of said sum until the claims asserted against it should be settled, and that the parties interested be compelled to litigate their respective claims before the court. The injunction was awarded, Mrs. Kelly filed her answer, denying liability to Bland & Bland, and they appeared and answered also, setting up their claims. Then on the 31st day of August, 1901, an order was made, directing an issue out of chancery as to the matters in controversy, and on the 30th day of November, 1901, Bland & Bland moved the court to set aside the order directing said issue, which motion was overruled, and a jury was impaneled, and the issue between Bland & Bland and Mrs. Kelly tried. The jury found for the defendant, Mrs. Kelly. A motion was made to set aside the verdict on the ground that it was contrary to the law and the evidence, and that the court had erred in directing the issue out of chancery, and in overruling a motion to set aside said order, but the court overruled the motion, and entered the following order: "Therefore it is considered by the court that L. W. Kelly recover of E. S. Bland and C. H. Bland, partners in the practice of law, under the firm name of Bland & Bland, her costs in this behalf expended." Thereupon Bland & Bland obtained an appeal.
There is no necessity for inquiry as to whether the proceeding in which this order was made is a pure interpleader suit in equity, where the final disposition of the controversy must be by a decree, either upon, or without, a verdict upon an issue out of chancery, according to the nature of the controversy and the evidence; or the statutory interpleader given by section 1 of chapter 107 of the Code, in which the final decision is by judgment; or a proceeding by mere motion to the court, upon citation, for the adjudication of conflicting claims respecting a fund in court, in which there must be an order, decree, or judgment either giving or disallowing what is claimed. There is no judgment or decree here saying whether Bland & Bland shall or shall not have the amount claimed by them, or any part thereof, nor whether the fund upon which they make their claim has been decreed to anybody else. The order gives judgment against them for costs only, and is silent as to the claim set up in their answer.
There are a few cases that hold that the existence or rendition of a judgment may stand upon mere inference or intendment where there is no positive, affirmative, or certain rendition of judgment, but where enough appears in the order to show that the court intended to render judgment or to support an inference that the court so intended. Thus, in Kase v Best, 15 Pa. 101, 53 Am.Dec. 573, the court held the entry made by a justice of the peace, "Therefore plaintiff for costs," to be a sufficient rendition of judgment, saying, "It was clearly the intention to give final judgment for the defendant, and, that being evident, the magistrate is not to be held to strict form." In Brown v. Parker, 38 C.C.A. 261, 97 F. 446, a judgment merely against the plaintiff for costs in a blank amount, reciting that it is rendered on a verdict for defendant returned by direction of the court, is sufficiently final and definite to give the right of appeal. All that is said in the opinion in support of this decision is: No precedents are cited for...
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