Dent v. Foy

• Decision Date: 07 June 1923
• Docket Number: 6 Div. 885,885-A.
• Citation: 210 Ala. 160,97 So. 627
• Parties: DENT ET AL. v. FOY ET AL.
• Court: Alabama Supreme Court

97 So. 627

210 Ala. 160

DENT ET AL. v. FOY ET AL.

6 Div. 885, 885-A.

Supreme Court of Alabama

June 7, 1923

Rehearing Denied June 28, and Oct. 11, 1923.

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Fred H. Foy and others against Helen A. Dent and others. From the decree rendered, both parties appeal. Affirmed.

S. H Dent, Jr., and Rushton & Crenshaw, all of Montgomery, for appellants.

W. H Merrill, of Eufaula, and Farmer, Merrill & Farmer, of Dothan for appellees.

GARDNER J.

Complainants in the court below, appellees here, filed this bill seeking the sale of certain real estate situated in Birmingham, Ala for division among the joint owners thereof. The property was sold pursuant to final decree rendered in the cause for the sum of $65,000. A reference was held for the purpose of ascertaining a reasonable attorney's fee to be allowed counsel for complainant for services rendered in the prosecution of the suit, resulting in a report by the register fixing the fee at $2,000. To this report complainants and respondents filed exceptions; complainants insisting that the evidence submitted upon this reference justified a much larger fee, while respondents contended that the sum fixed should be correspondingly lower. The court confirmed the register's report, and from this decree the respondents have prosecuted the original appeal, while complainants have taken a cross-appeal, and errors have been assigned accordingly.

Counsel for respondents insist: First, that no fee should have been allowed at all payable out of the common fund; and, second, if allowed, it should in no event exceed the sum of $500. Since the passage of the act of 1903, now embraced within the provisions of sections 3010 and 5219 of the Code of 1907, it has been held by this court that the solicitors for the complainant in bills of this character were properly allowed a fee for their services payable out of the common fund. It was expressly so decided in Flomerfelt v. Siglin, 155 Ala. 633, 47 So. 106, 130 Am. St. Rep. 67, and Musgrove and Aldridge, 205 Ala. 189, 87 So. 803, and was assumed as established by our decisions in Butler v. Fuller, 204 Ala. 272, 85 So. 539; De Ramus v. De Ramus, 205 Ala. 219, 87 So. 354.

Counsel for appellants lay stress upon the authority of Bidwell v. Johnson, 191 Ala. 195, 67 So. 985. In that case the executrix, whose duty it was to administer the trust fund, was represented by counsel, and the case involved the allowance of an attorney's fee payable out of the trust fund to the attorney for some of the beneficiaries, and a distinction is drawn between services rendered for the benefit of a few and those rendered which inure to the benefit of all. There is nothing in that authority which militates against the conclusion we have reached. It being established that the real estate here involved could not be equitably partitioned in kind, a sale for division among the tenants in common was a matter or right, and from a legal standpoint, as said in Musgrove v. Aldridge, supra, "it necessarily follows the services of counsel for complainant in the prosecution of the suit to this end was for the benefit of all concerned," and the mere fact that it may be shown the property brought no more at this sale than the parties could have secured at a private sale does not affect the result, or change the principle involved.

We are therefore of the opinion that under the previous decisions of this court, construing the provisions of the foregoing section of our Code, counsel for complainants were entitled to a reasonable compensation for their services, to be paid from the common fund. We are of the opinion this holding does not...