Lavretta v. First Nat. Bank

• Decision Date: 08 June 1939
• Docket Number: 1 Div. 48.
• Citation: 189 So. 881,238 Ala. 265
• Parties: LAVRETTA ET AL. v. FIRST NAT. BANK OF MOBILE.
• Court: Alabama Supreme Court

189 So. 881

238 Ala. 265

LAVRETTA ET AL. v. FIRST NAT. BANK OF MOBILE.

1 Div. 48.

Supreme Court of Alabama

June 8, 1939

Rehearing Denied June 29, 1939.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Bill to foreclose mortgage by the First National Bank of Mobile against John Lawrence Lavretta and Leota Lawrence Lavretta. From a decree for complainant, respondents appeal.

Affirmed.

James E. Duggan and Chas. A. Cunningham, both of Mobile, for appellants.

Robt. H. Smith, of Mobile, for appellee.

KNIGHT Justice.

The original bill in this cause was filed by the complainant, the First National Bank of Mobile, against the defendants, John Lawrence Lavretta and wife, to foreclose a mortgage.

This is the second appeal in this cause. The former appeal is reported in 235 Ala. 104, 178 So. 3. Quod vide.

On return of the case to the circuit court of Mobile County that court, on final hearing on pleading and proof, entered a decree granting the complainant the relief prayed for, and referred it to the register of the court, as special master to hold reference to ascertain the amount still due and owing to complainant on said mortgage, principal and interest, and also to ascertain what would be reasonable compensation to be paid to the solicitor of complainant for "prosecuting this cause."

It appears that the parties agreed in writing, on the reference before the special master, that the amount of the mortgage debt, exclusive of attorney's fee, remaining unpaid as of August 3, 1938, was $68,141.19. The special master so reported, and his report in this respect was duly confirmed by the court. The appellant, on this appeal, makes no complaint as to this part of the decree.

The master reported that, in his opinion, $7113 would be a reasonable fee to be allowed complainant's solicitor in the cause. This last finding was made by the master upon evidence given before him, and which appears in the record. The agreement of the parties did not cover this phase of the reference. This feature of the master's report was also confirmed by the court.

The court, in its final decree, adjudged and decreed that the complainant had a lien upon the lands conveyed by the mortgage, and described in the bill, for the aggregate amount of $75,254.19, representing the balance due in principal and interest on the mortgage, as of August 3, 1938, and the solicitor's fee of $7113. The decree then proceeds: "Unless the said amounts ($68,141.19, principal and interest, and $7113.00 solicitor's fee) herein decreed to be due to the complainant together with the cost of this case, are paid within thirty days from the date of this decree, the register of this court will proceed to advertise for sale, the lands upon which complainant holds a mortgage, and which are herein above described, and said advertisement shall be made for thirty days before such sale, by publication for once a week for three successive weeks in some newspaper published in the City of Mobile, State of Alabama, and shall give notice of the time, place and terms of sale, together with a description of the real estate to be sold, and the register shall, in front of the door of the Court House of Mobile County, Alabama, sell at public auction, for cash unto the highest bidder, all the real estate upon which complainant holds such mortgage, such sale to be made for the satisfaction of the amounts due to the complainant as hereinabove set forth."

It appears from the record that the report of the register and special master as to the amount of complainant's debt due under said mortgage, and as to a reasonable solicitor's fee in conducting the litigation was read and duly filed in said court on October 14, 1938, and was in all respects, on due submission, ratified and confirmed by the court on October 18, 1938. No exceptions to said report, or to any part of it were taken and filed by the defendants. The record also discloses the evidence upon which the special master acted in making his findings and report.

It is now insisted that the compensation or fee allowed complainant's counsel was and is excessive. As above pointed out, no exceptions were filed to the finding of the register as to this item embraced in his report, and this finding was duly confirmed by the court. The finding of the register having been duly confirmed without exceptions is conclusive on appeal. The appellant can take nothing by this assignment of error. Chancery Court Rule 93; Jones v Moore, 215 Ala. 579, 112 So. 207; Stone v. Vaughn, 232 Ala. 120, 167 So. 297; Ex parte Apperson, 217 Ala. 176, 115 So. 226; Warren v. Lawson, 117 Ala. 339, 23 So. 65.

It is next insisted that the fee allowed for services of complainant's solicitor was in excess of the amount claimed in this bill. In its bill the complainant prayed to be allowed a reasonable solicitor's fee, and, coupled with this, was the statement that certain designated amounts would be reasonable compensation. The claim was made for a reasonable attorney's fee, and the statement that a certain named amount or amounts would be reasonable compensation was but the expression of the opinion and conclusion of the pleader under the facts then known to him. This conclusion of the pleader was in no wise binding upon the court, whose duty it was to fix and allow a reasonable fee, depending wholly upon the facts of the case, and wholly independent of any opinion of the pleader set forth in the bill. Again, too, when the register reported as to the amount of the fee that should be allowed, the defendants permitted this report to be confirmed without filing any exceptions thereto. For this reason, also, there is no merit in...