MacDonald v. Tittmann

• Decision Date: 11 November 1902
• Citation: 96 Mo. App. 536,70 S.W. 502
• Parties: MacDONALD et al. v. TITTMANN.
• Court: Missouri Court of Appeals

70 S.W. 502

96 Mo. App. 536

MacDONALD et al. v. TITTMANN.

Court of Appeals at St. Louis. Missouri.

November 11, 1902.

ATTORNEYS — COMPENSATION — ESTATES — ALLOWANCE OF CLAIMS — WITNESS — COMPETENCY — APPEAL.

1. Where two attorneys are severally employed in a cause, each is entitled to recover for the reasonable value of his own services, in the absence of any different contract. One is not entitled in such a case to recover severally one-half of the value of the services of both attorneys.

2. A demand for an allowance against an estate in process of administration is a proceeding in the nature of an action at law for the recovery of money, and it is not reviewable on the facts upon appeal.

3. In an action to recover compensation for legal services, there was evidence tending to show that plaintiff and another attorney were severally employed. Plaintiff died before the action was tried. The other attorney was offered as a witness to show the extent of his own services in the case, and was permitted to testify. It is held that the witness did not have such an interest in the result as would render him incompetent under section 4652, Rev. St. 1899.

4. When the trial court adopts a theory of law advanced by one of the parties, the latter cannot successfully challenge that theory on appeal.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; W. C. Douglass, Judge.

Action by Malcolm MacDonald and others against E. C. Tittmann. Judgment for defendant, and plaintiffs appeal. Affirmed.

Hickman P. Rodgers, for appellants. John M. Holmes, for respondent.

BARCLAY, J.

This appeal must be disposed of upon rather narrow grounds, defined by our law of procedure. The demand of plaintiffs against the estate of Basil W. Alexander, in charge of the defendant as administrator, for $2,950 is founded upon a claim for services rendered by Mr. Robert S. MacDonald, an attorney at law, on behalf of the defendant estate. He died after this action was begun. Plaintiffs were substituted in his stead, as his administrators. There is testimony tending to prove the facts recited in the lucid statement of counsel for appellants, from which we quote as follows, making a few modifications in matters of form: The services for which compensation is claimed were rendered by Mr. MacDonald, deceased, in the circuit court, city of St. Louis, and supreme court of Missouri, on behalf of the Alexander estate, at the instance and request of defendant, as administrator thereof, in defense of a case entitled "State ex rel. Richard Hospes et al., Trustee of Alice Crooks, and to Use of Alice Crooks, v. Joseph W. Branch, Eugene C. Tittmann, Adm'r of the Estate of Basil W. Alexander, deceased, and Elizabeth Parks, Executrix of Robert M. Parks, Deceased," in which judgment was prayed for a large sum of money. The evidence shows that Mr. Branch was curator for Alice Crooks, and was afterwards her trustee; that Messrs. Alexander and Parks, were sureties on his bond in one of those capacities; and that judgment was prayed against Mr. Branch and the estates of his bondsmen for a large sum of money, for which he was alleged to be in default. Mr. Branch permitted the case to go by default. The Parks estate made no defense, except nominally at the first trial, so the burden of the defense fell upon Mr. Tittmann, administrator of the Alexander estate, the only solvent defendant. The Branch case was pending from about 1889 to 1899, during which time it was tried before a jury in the circuit court four times, and argued and submitted to the supreme court the same number of times, and once in addition thereto on a motion for rehearing. The defense prevailed in the circuit court at the first two trials, and in the supreme court on appeal from the judgment in favor of plaintiff at the third trial; but at the fourth trial plaintiff obtained judgment for the penalty of the bond, to be satisfied on payment of $30,009 and costs. This judgment was finally affirmed by the supreme court (52 S. W. 390), and satisfied out of the funds of the Alexander estate. The evidence does not show precisely what services were performed by Mr. MacDonald, but it establishes conclusively the facts that he was present at the various trials in the circuit court, and at the counsel table with his associate, Mr. Kehr, and took voluminous notes of the testimony given; that his name appeared as senior counsel, in connection with that of Mr. Kehr, on the pleadings, abstracts, briefs, and papers filed on behalf of the Alexander estate from the beginning to the end of the unusual and lengthy course of that case. The evidence also shows that Mr. Tittmann wrote a letter in 1889 congratulating Mr. MacDonald on the result of the first trial, and on February 19, 1890, paid Mr. MacDonald the sum of $550 "on account of legal services rendered in the case of State, to Use of Hospes, v. Branch et al., circuit court," and took credit for same in his settlement as administrator of the Alexander estate, and that while the Branch case was pending in the courts a partial distribution of the sum of $72,000 among the heirs of the Alexander estate was made by said administrator. It was shown by Mr. Benjamin Schnurmacher, a witness who was of counsel for plaintiff in the Branch case, and by Hon. Daniel Dillon, who twice presided as judge in the trial thereof in the circuit court, that a reasonable fee for the work done by the attorneys for the Alexander estate in the Branch case would be at least $5,000. Mr. Kehr, who was associated with the deceased, Mr. MacDonald, as counsel for Mr. Tittmann,...