Ex parte Blackmon, 7 Div. 570.

• Decision Date: 22 June 1939
• Docket Number: 7 Div. 570.
• Parties: EX PARTE BLACKMON. v. BIBB ET AL. STATE EX REL. CARMICHAEL, ATTY. GEN.,
• Court: Alabama Supreme Court

191 So. 356

238 Ala. 369

EX PARTE BLACKMON.

STATE EX REL. CARMICHAEL, ATTY. GEN., v. BIBB ET AL.

7 Div. 570.

Supreme Court of Alabama

June 22, 1939

Rehearing Denied Oct. 12, 1939.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Action by the State of Alabama, on the relation of A. A. Carmichael Attorney General, against John D. Bibb and others, for the conservation of a trust fund and protection and enforcement of trust, wherein Ross Blackmon filed petition for allowance of counsel fees for services rendered for the complainant. From a decree sustaining a demurrer to the petition petitioner appeals.

Affirmed.

Ross Blackmon, of Anniston, and Mulkey & Mulkey, of Geneva, for appellant.

Knox Acker & Sterne and John D. Bibb, all of Anniston, for appellees.

KNIGHT Justice.

Petition by appellant, Ross Blackmon, filed in a certain cause lately pending in the Circuit of Calhoun County, wherein the State of Alabama, on relation of A. A. Carmichael, (then) Attorney General of Alabama, was complainant and John D. Bibb, as trustee under the last will and testament of L. H. Kaplan deceased, and others, were defendants, for allowance of counsel fees for services rendered for the complainant in said cause, in the matter of the conservation of the trust fund and the protection and enforcement of the trust.

The original bill was filed by the Attorney General, with the petitioner, and another firm of attorneys, as his solicitors of record in the cause.

To the original bill, the appellee Bibb as such trustee demurred, but his demurrer was overruled. He took no appeal, however, from that decree.

The other respondents filed demurrers also to the bill, and their demurrers were sustained. From that interlocutory decree, the complainant prosecuted an appeal to this court, which resulted in the reversal of the decree. In the decree reversing the cause, it was held that the bill contained equity in some of its aspects, that is to say, in those aspects which sought an accounting by, and the removal of, the trustee, and the protection and enforcement of a public charity created under and by the will of L. H. Kaplan, deceased, and it was further held that the bill was properly brought by the state on the relation of the attorney general. This decree was rendered, not upon final submission on pleading and proof, but on demurrers to the bill. This fact we pointed out in our opinion reversing the cause. Whether the evidence thereafter to be offered to support the charges made in the bill against the respondent trustee would, in fact, sustain such charges remained to be determined, and up to this time no proof has been offered in support of such charges, nor has there been a submission, or final decree determining the issues presented by the bill. For report of the case, see State ex rel. Carmichael, Attorney General v. Bibb et al., 234 Ala. 46, 173 So. 74. We expressly held the bill to be without equity in so far as it sought a sale of the property for partition; and we further held that the state, on relation of the attorney general, could not invoke the jurisdiction of the equity court to sell the trust property for administration purposes; that such question should be presented, if ever, by the trustee, under showing, supported by proof, that the sale was necessary to carry out the terms of the trust, or that the sale would, by reason of changed conditions, best promote the interest of the intended beneficiary.

It appears that the administration of the trust estate was pending in said Circuit Court of Calhoun County at the time the original bill in this cause was filed, but the bill filed by the attorney general was an original, independent bill, and was not filed in the then pending proceedings, which was styled Cause 47 on Circuit Court Docket, Equity Division.

The decree of this court, reversing the decree of the circuit court, was rendered on March 4th, 1937, and rehearing was denied on March 25th, 1937.

It appears that on March 18, 1937, Bibb as such trustee filed a complete report of his trusteeship, covering a period of sixteen years, but this report was filed in Case No. 47, being the case in which he was appointed such trustee, and which was still open on the docket. This report was not filed in the case brought by the attorney general.

On August 4th, 1937, the said A. A. Carmichael filed in the Circuit Court of Calhoun County, in equity, the following document:

"Thomas W. Coleman, Jr., et al., v. C. H. Tomlinson, et al.

"In the Circuit Court of Calhoun County, Alabama.

"In Equity--No. 47.

"Now comes A. A. Carmichael, as Attorney General of Alabama, and hereby revokes all authority to represent him heretofore granted to any attorney or attorneys, and withdraws from the file in said cause any and all pleadings, filed in his behalf therein, except his acceptance of notice of the filing of the report and account of John D. Bibb, as trustee in said cause."

This paper is duly signed by Carmichael in his official capacity.

The case of Thomas W. Coleman, Jr., et al. v. C. H. Tomlinson, No. 47 on the Equity Docket of said court, is the case involving the administration of the estate of said L. H. Kaplan, deceased, and the identical trust estate involved in the case of State ex rel. A. A. Carmichael, Atty. Gen'l. v. John D. Bibb as Trustee et al., supra, the only change being that the said Coleman, and other named trustees, had resigned, and Agee had been appointed in their stead, and on resignation of Agee, the appellee Bibb had been appointed by the court in place of Agee.

It appears that the Attorney General had an audit made of said Bibb's report and accounting, and furnished the presiding judge of said court with a copy of the same on May 17, 1937. But this report does not appear in the record before us.

On May 26, 1937, the appellant, Ross Blackmon, filed in said cause a petition of intervention praying, among other things:

"That upon final hearing of this petition, upon pleading and proof, that your Honors will order a reference to the Register of this Court directing him to determine and report to the Court what would be a reasonable Solicitor's fee to be awarded petitioner and the firm of Mulkey & Mulkey as solicitors of record in the above styled cause.

"That the proceeds of said trust estate be impressed with a lien in favor of said solicitors of record to the extent of the value of their attorney's fee determined on reference as hereinabove prayed.

"That an order, judgment or decree be entered authorizing a sufficient portion of said assets be sold for the purpose of realizing a fund with which to pay and discharge said attorneys' fee."

Thereafter, on August 5th, 1937, the said attorney general dismissed the bill filed by him in said cause. The following is a copy of the notice of dismissal:

"Complainant's dismissal of amended bill and proceeding No. 3570.

"Now comes the complainant in the above entitled cause and dismisses, without prejudice, the original bill as last amended, and proceeding No. 3570."

This document bears the official signature of A. A. Carmichael, as Attorney General of Alabama.

It further appears from the record, and brief of counsel on both sides of this appeal, that after the reversal of this cause on former appeal, the attorney general caused a state examiner of public accounts to audit and report to him on the accounts and vouchers of Bibb as trustee, filed in cause No. 47 in said court, and that about that time friction arose between the attorney general and Mr. Blackmon over the action by the attorney general, and which finally terminated in the severance of the relations theretofore existing between the two. While out of the case so far as representing the state or the attorney general, Mr. Blackmon continued to press his petition which is now before this court on appeal from a decree of the circuit court sustaining demurrers thereto.

On August 15th, 1938, the court sustained demurrers to the petition of intervention as first filed, and thereafter the intervenor amended his petition by addition of several new paragraphs, and with additional prayers. However, the case made by the amendment does not alter, or add to, or change in any material...