Graham v. Graham

• Decision Date: 08 June 1922
• Docket Number: 3 Div. 565.
• Citation: 207 Ala. 648,93 So. 660
• Parties: GRAHAM ET AL. v. GRAHAM ET AL.
• Court: Alabama Supreme Court

93 So. 660

207 Ala. 648

GRAHAM ET AL. v. GRAHAM ET AL.

3 Div. 565.

Supreme Court of Alabama

June 8, 1922

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by Daniel M. Graham and another against Peter H. Graham and another for a partition and sale of certain lands for division of the proceeds, in which W. A. Gunter petitioned to be allowed an attorney's fee. From a decree conforming the master's report finding the amount of this fee respondents appeal. Reversed and remanded.

W. P McGaugh and Eugene Ballard, both of Montgomery, for appellants.

W. A Gunter, of Montgomery, for appellees.

McCLELLAN J.

The review now invoked is of the action of the circuit court (in equity) in allowing, through confirmation of a special master's report, a solicitor's fee of $3,500 for professional services rendered by Mr. William A. Gunter in the cause styled Graham v. Graham, reported in 202 Ala. 56 79 So. 450; same case, second appeal, 205 Ala. 644, 89 So. 25. The bill in the cause was filed to effect sales for division, among averred joint owners, of certain lands in Autauga and Montgomery counties, and for other subsidiary purposes. From conclusions prevailing in this court the Autauga county real estate was eliminated as a subject of the sale subject. There was no serious controversy with respect to the propriety of the sale for division of the Montgomery county lands.

Consequent upon a petition by Mr. Gunter for allowance of solicitor's fees for services in the cause-in virtue of the statutes (Code, §§ 3010, 5219)-the court appointed a special register to hold a reference in the premises. The order of reference directed the special register to report "what amount of money should be allowed said petitioner for all his services as attorney in said cause and representing the entire litigation, there involved." (Italics supplied.)

The order of reference was affected with error. Its direction contemplated the ascertainment of the petitioner's fee upon the basis of services rendered in the entire litigation or cause; whereas, the fee allowable and assessable must have been measured by such of the solicitor's services as "was of benefit to the common estate as distinguished from services that were rendered by him in presenting or preserving the individual interests" of parties to the proceeding or cause. De Ramus v. De Ramus, 205 Ala 219, 87 So. 354; Bidwell v. Johnson, 191 Ala. 195, 198, 199, 67 So. 985, Code, §§ 3010 and 5219, are the result of the act approved February 2, 1903 (Gen. Acts 1903, p. 33). The former section (3010) follows the language of the act; but the latter section (5219) was rewritten and differently phrased. By the terms of section 5219 the "services" for which a "charge on all interests" may be imposed must...