Fuller v. Clemmons

• Decision Date: 17 December 1908
• Parties: FULLER ET AL. v. CLEMMONS.
• Court: Alabama Supreme Court

48 So. 101

158 Ala. 340

FULLER ET AL. v. CLEMMONS.

Supreme Court of Alabama

December 17, 1908

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by J. I. Clemmons against Mildred Fuller and others. A motion to dismiss for want of equity was overruled, and respondents appeal. Affirmed.

Henry Chamberlain, for appellants.

T. J Torrey, for appellee.

DOWDELL J.

The appeal in this case is taken from the decree of the chancellor overruling the respondents' motion to dismiss the bill for want of equity. The purpose of the bill is to effectuate and enforce an alleged lien for an attorney's fee in favor of the complainant on a moneyed decree obtained by his services rendered as such attorney in favor of the respondent Mildred Fuller against one Charles H. Schwaemmle.

On a motion to dismiss a bill for want of equity, the facts stated in the bill are to be taken as admitted. After averring complainant's employment as attorney, the services rendered, and the procuring of the decree, it is stated and averred in the bill "that said sum of $500 was paid into the hands of said Boyles & Kohn (respondents), who had become associated with your orator as assistant solicitors at a very late stage of the proceedings; * * * that said sum is still in their hands, and retained by them for a proper disposition of the same, and subject to orator's lien upon the same for his services as solicitor in said cause, and upon which they are advised, believe, and admit he has such lien."

The "first" insistence of counsel for appellant in brief and argument, that, the term of the court at which the decree in question was rendered having adjourned before the filing of the present bill, the court has lost all control over the same, is without merit. To alter or disturb that decree in any manner is entirely foreign to the purpose of the bill. The lien of an attorney upon the judgment or decree for services rendered by him as such in the particular case in obtaining the same, as stated in former decisions of this court, has long been a settled question in the jurisprudence of this state. Higley v. White, 102 Ala. 602, 15 So 141; Jackson v. Clopton, 66 Ala. 29; Ex parte Lehman, Durr & Co., 59 Ala. 631; Warfield v Campbell, 38 Ala. 527, 82 Am. Dec. 724. The existence of the lien in the present case is admitted, and it is further admitted that the fund representing the decree is in the hands of the...