Higley v. White

• Decision Date: 05 April 1894
• Parties: HIGLEY v. WHITE ET AL.
• Court: Alabama Supreme Court

15 So. 141

102 Ala. 604

HIGLEY v. WHITE ET AL.

Supreme Court of Alabama

April 5, 1894

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Bill by Irwin B. Higley against E. B. and C. D. Powell. From a decree enforcing a lien in favor of F. S. White and Taliaferro &amp Smithson for attorneys' fees on the decree in favor of complainant, complainant appeals. Affirmed.

The original bill in this case was filed by the appellant, I. B Higley, against E. B. and C. D. Powell; and sought the specific performance of a contract for sale. The report of that case, on appeal, is found in 90 Ala. 103, 7 So. 440. The proceedings, which are reviewed on the present appeal, arose in the following manner: After the decree rendered in this case, setting the equities in favor of the complainant, was affirmed on appeal in this case (at the November term, 1889) the reference ordered in that decree was executed, and a decree was rendered by the court below, on the 20th of January, 1891, ascertaining that the defendants were due and owing to the complainant on the 5th of January, 1891,-the date of the report of the clerk and register,-the sum of $4,289.12.-including interest to that date, which, by the decree of the court, was made a charge or lien on the lots described in the bill for its payment; and, in default of the payment of that sum into the hands of the clerk and register within 10 days, he was ordered, in a manner directed by the decree, to proceed to sell said lots to the highest bidder for cash, and make report to the court. The proceeds of the sale, by the terms of the decree, were ordered to be applied-First, to the payment of the costs of the case second, to the payment to the complainant of said sum of $4,289.12; third, the surplus, if any, to be paid to the defendant, C. B. Powell; but, if said lots should not sell for a sufficient sum to pay said costs and the amount due the complainant, then, and in that event, the complainant shall recover of defendant, C. B. Powell, his costs expended in the cause. A sale was made by the clerk and register, under this order, on 28th September, 1891, which was reported to the court, objected to by the complainant, and which appears never to have been confirmed. At that sale, the complainant bid the sum of $3,500 for the lots, and he tendered in money $432.35, the costs in the case, and his receipt for the balance of the decree, in full of payment of his bid, which was not accepted by the clerk and register. On the 21st of October, 1891, A. O. Lane and F. S. White, as Lane & White and E. T. Taliaferro and Noble Smithson, as Taliaferro &amp Smithson, as attorneys for complainant, filed their petition in said court, setting out the services they had rendered to complainant in and about procuring said moneyed decree, in favor of complainant, and having a lien declared on said lots for the payment of the same, stating the value of the services they rendered in that behalf, and prayed the court for a reference to ascertain the value of their services as attorneys, and then, "that a decree be rendered, declaring a lien upon said decree for the amount found due to petitioners for their services aforesaid, and that a sufficient portion of the proceeds of the land heretofore sold under the decree of the court, be paid to petitioners in payment of their said fees." This petition was demurred to on the following grounds: (1) That the petitioners have not, in and by their said petition, made or stated such a case as entitled them in a court of equity to any relief against complainant as to the matters contained in said petition. (2) Because they have a plain and adequate remedy at law, and there being no fund in the court out of which they may be remunerated, a court of chancery has no jurisdiction in the premises. This demurrer was overruled. Thereupon, complainant filed an answer to the same, denying petitioners' right to the decree asked for. The cause was submitted on the petition and answer, and the court made a decretal order, on the 30th October, 1891, directing the clerk and register to ascertain what would be reasonable compensation to said solicitors for their services, and whether they had been paid any, and if so, what amount on their fees. By agreement of the parties, $350 was ascertained and reported as a reasonable fee to be paid said solicitors, one-half to F. S. White, and one-half to Taliaferro & Smithson, one-fourth to Taliaferro and one-fourth to Smithson, Taliaferro's share to be credited by $25, which had been paid to him. This report was confirmed without exception on the 30th May, 1892. On the same day, the parties came and the cause was submitted by them "for decree in behalf of complainant upon the original bill of complaint, petition of F. S. White. Taliaferro & Smithson and the order of reference thereon, as well as all other parts of the record,-excepting the answer of said Higley to the petition of said F. S. White, and Taliaferro & Smithson; and, in behalf of complainant Higley, upon his plea and answer to...