Kelly & Middleton v. Horsley

• Decision Date: 14 June 1906
• Citation: 147 Ala. 508,41 So. 902
• Parties: KELLY & MIDDLETON v. HORSELY.
• Court: Alabama Supreme Court

41 So. 902

147 Ala. 508

KELLY & MIDDLETON v. HORSELY.

Supreme Court of Alabama

June 14, 1906

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

"To be officially reported."

Petition by Kelly & Middleton against D. M. Horsley. From a decree denying petitioners' relief, they appeal. Dismissed.

Richard B. Kelly, for appellants.

Peyton H. Moore, for appellee.

TYSON J.

This is a petition addressed to the chancellor asking a reference to ascertain the compensation reasonably earned by petitioners as attorneys, for services rendered respondent in a chancery suit, and for a decretal order declining to give effect to petitioners' discharge until their compensation for services has been paid or secured, or until further orders from the court. The case made by the allegation of the petition is that petitioners were employed by respondent to represent him in a suit pending in the chancery court of Jefferson county wherein one Cole was complainant and this appellee respondent; that pending said employment they rendered valuable services to respondent in advice and the preparation of his defense; that petitioners have been notified that their services were no longer required by respondent in conducting his defense; and that petitioners have not been paid anything for services rendered, nor have they been tendered any payment or securities for the same. On motion of respondent the petition was dismissed for want of equity.

The cause is submitted upon the record and upon a motion for a rule nisi to the chancellor for a mandamus, or other remedial writ, commanding him to show cause why he should not be required to decline to give effect to the discharge of the petitioners as solicitors for respondent until respondent shall have first either paid or secured the said petitioners a reasonable compensation for services they have already rendered him. As an appeal will not lie from the order dismissing the petition, the record is considered for the sole purpose of ascertaining whether the rule should issue as prayed. It must be observed, from reading the petition and motion, that the question of substitution without compensation is not presented for decision. The gravamen of the charge is the discharge of the attorneys without payment for services rendered, or the tender of payment or security and a request to require payment as a condition precedent to a discharge. It is not alleged that the court has refused to recognize the...