Gulf States Steel Co. v. Christison, 7 Div. 217.

CourtSupreme Court of Alabama
Citation154 So. 565,228 Ala. 622
Docket Number7 Div. 217.
Decision Date05 April 1934

Rehearing Denied May 24, 1934.

Certiorari to Circuit Court, Etowah County; Woodson J. Martin, Judge.

Proceeding under Workmen's Compensation Act by William F. Christison against the Gulf States Steel Company to recover compensation on account of injury sustained in course of employment. Judgment awarding compensation, and the employer brings certiorari.


O. R Hood and Roger Suttle, both of Gadsden, for appellant.

Inzer Davis & Martin and Rains & Rains, all of Gadsden, for appellee.

FOSTER Justice.

This is an action by an employee against his employer for compensation on a claim that he was injured in the course of his employment and arising out of it.

The contention made by appellant on this appeal, to which we will first give attention arose on a motion to vacate the judgment because the presiding judge was disqualified under section 8570, Code. One of plaintiff's counsel was a son of the judge.

The question involves the proper construction of the word "party" as used in that statute. Does it include under any circumstances the attorney of record of a party to the suit? This court has never expressed itself directly on that subject. In the case of Crook v. Newborg, 124 Ala. 479, 27 So. 432, 433, 82 Am. St. Rep. 190, this statute, then stated in the same language, was held to mean "that the disqualification extends not only to the party to the records, but that the judge is incompetent when related within the fourth degree to any person interested in the judgment or decree," citing Gill v. State, 61 Ala. 171, with many cases from other states. This case has been cited in other states to sustain a construction of similar acts to include as a "party" an attorney "who is interested in the subject-matter of the litigation though not a formal party to the record" by reason of his employment. Yazoo & M. Valley R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 712, 834, 42 L. R. A. (N. S.) 1172, Ann. Cas. 1914C, 968. To the same effect is Roberts v. Roberts, 115 Ga. 259, 41 S.E. 616, 90 Am. St. Rep. 108.

But the mere fact that an attorney is retained on a contingent fee, as by the defendant, when such fee is not payable out of the judgment, and with no lien on it, but when the result will only fix the fact or amount of such fee, he is not by such a contract interested in the subject-matter of the suit, though he is interested in its outcome. In such latter situation it is merely an event which affects him, but he has no interest in that which the suit concerns. Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676, 11 A. L. R. 1321; Shireman v. Wildberger, 125 Miss. 499, 87 So. 657; Young v. Harris, 146 Ga. 333, 91 S.E. 37. For other cases, see 11 A. L. R. 1326.

There are cases which hold that plaintiff's attorney who has a contingent fee payable out of the judgment and affected by its amount is not a party so as to disqualify a related judge. Hundley v. State ex rel. Milton, 47 Fla. 172, 36 So. 362; Winston v. Masterson, 87 Tex. 200, 27 S.W. 768; Allison v. So. Ry. Co., 129 N.C. 336, 40 S.E. 91.

Under section 6262, Code, attorneys have a lien for their fee upon suits, judgments, and decrees for money, and are given "the same right and power over said suits, judgments and decrees, to enforce their liens, as their clients had or may have for the amount due thereon to them," and may intervene and become parties in name for that purpose. Denson v. Ala. Fuel & Iron Co., 198 Ala. 383, 73 So. 525; Id., 208 Ala. 337, 94 So. 311; Fuller v. Lanett Bleaching Co., 186 Ala. 117, 65 So. 61; Ala. Produce Co. v. Smith, 227 Ala. 330, 150 So. 148.

The basis of the disqualification of the judge is not that the related attorney is employed on a contingent fee, but because such fee is payable out of the judgment recovered or is a lien on it, and that its amount is also affected by the amount of the recovery. Under such circumstances the attorney is directly interested in the subject-matter of the suit and its result. He is then a "party" within section 8570, Code.

As we have said, this is a statutory compensation suit. The plaintiff, being competent, may pay his attorneys as they may contract, except that no part of the compensation due plaintiff under the act shall be paid to the attorneys for their services, unless a circuit judge shall order and approve the employment, and shall fix the fee, which shall not exceed 10 per cent. of the compensation awarded or paid under the act. Section 7542, Code.

Upon petition in this cause, heard prior to the trial, the circuit judge granted plaintiff authority to employ two firms of lawyers, in one of which firms, it was shown on the motion for a new trial, the son of the judge who made the order and who tried the suit was a partner. When compensation was awarded, the judge fixed the amount of the fee at 10 per cent. of the total amount of the compensation awarded. Defendant tried the cause to a finish without objecting to the qualifications of the judge under the statute. It is first presented in the motion for a new trial.

Section 8570, Code, prohibits a disqualified judge from presiding "without the consent of the parties entered of record, or put in writing, if the court is not of record." That has been in the statute since the enactment of the Code of 1852, section 560 of that Code, and section 635 of the Revised Code of 1867, in addition to those since, as noted in the brackets.

A construction of the statute in this connection seems first to have been made in the case of Hine v. Hussey, 45 Ala. 496, where on page 513, the court held that, since consent was provided for in the act, its violation did not render the judgment void, but voidable only, and said, in respect to the consent, that "its entry on the record is the only admissible evidence that it was given." See, also, Trawick's Heirs v. Trawick's Adm'rs, 67 Ala. 271; Jeffersonian Pub. Co. v. Hilliard, 105 Ala. 576, 17 So. 112; Hutto v. Walker County, 185 Ala. 505, 64 So. 313, Ann. Cas. 1916B, 372. And then in Hayes v. Collier, 47 Ala. 726, again affirming that the failure to observe the statute does not render the judgment void, and referring to the fact that the statute authorizes the judge to act with "the consent of the parties entered of record," also stated that the omission of that entry should not annul the judgment so as to authorize strangers to have it vacated at any indefinite time afterwards.

In Collins v. Hammock, 59 Ala. 448, it said that no objection to the competency of the judge was raised on the trial, but first came upon a motion to quash execution and vacate the judgment made several years after it was rendered. This was said to be a collateral attack, and that, since it was not void, the attack was ineffectual. The opinion quoted from Freeman on Judgments that, "If the facts are known to the party recusing, he is bound to make his objection before issue joined, and before the trial is commenced, otherwise he will be deemed to have waived the objections, in cases where the statute does not make the proceedings void." Fifth Edition, § 329.

In the case of Yazoo & M. V. R. Co. v. Kirk, supra, the court was dealing with a constitutional provision similar to our section 8570, Code, but with the proviso that the disqualified judge may not act "except by the consent of the judge and of the parties." It did not specify the manner of evidencing that consent. It was held that proceeding to trial without objection before judgment was a conclusive presumption of such consent. Doubtless Judge Freeman and others who have thus broadly expressed themselves referred to statutes which did not specify the manner of giving that consent. Stearns v. Stearns, 106 Fla. 440, 143 So. 642.

But our statute specifies the manner in which such consent must be manifested. When so, it must be complied with. Statutory requirements cannot be evaded on the doctrine of estoppel or waiver in a different manner. So that our only inquiry at this point in the discussion is to find out if "the consent of the parties (was) entered of record or put in writing."

We think it would be an erroneous construction of the requirement to hold that it means that such consent must be expressed in any certain language. But we entertain the view that a judgment in a court of record will not be set aside on any attack, direct or collateral, by a party who had knowledge of the disqualification of the judge before the trial began or during its progress, and on the ground of his disqualification when matter of record shows that he consented for the judge to act and continue to preside to the point of rendering judgment. It is not necessary for the record to use the word "consent" or its equivalent, if the matters there disclosed evidence such consent as a proper interpretation of their effect.

We therefore look to the record for the purpose of finding its meaning in this respect. Before the trial began, plaintiff filed a motion for authority to employ certain named counsel including the son of the judge as one of them. The petition made no mention of the compensation to be paid them, and the order on the petition was silent in that respect. But the only purpose which could have been thereby accomplished was to comply with section 7542, Code. We think that the effect of that petition and order was to give record notice to the parties to the suit, that, regardless of any contract between plaintiff and his counsel, they were to be paid out of the award an amount to be fixed by the judge contingent upon the amount of such award. That is exactly what was ordered. On the next day after that petition and order were...

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    ...of success has been given application in regulation of solicitors' fees under legislative enactment. Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, 568, and the Code of 1923, §§ 7213, 7542. In the recent decision of Willett & Willett et al., v. First Nat. Bank of Anniston, ......
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    ...operating upon other conditions of common exposure." Pow, 235 Ala. at 584, 180 So. at 290 (quoting Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, 569 The Court of Civil Appeals, in City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (Ala.Civ.App.1975), grappled wit......
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    ...Ala. 576, 581, 17 So. 112; Hutto v. Walker County, 185 Ala. 505, 511, 64 So. 313, Ann.Cas.1916B, 372; Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565. The rule declared as to that situation is that after the term at which the condemnation decree was rendered has expired, that......
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