McHenderson v. Anderson County

• Decision Date: 17 November 1900
• Citation: 59 S.W. 1016,105 Tenn. 591
• Parties: McHENDERSON et al. v. ANDERSON COUNTY et al.
• Court: Tennessee Supreme Court

59 S.W. 1016

105 Tenn. 591

McHENDERSON et al. v. ANDERSON COUNTY et al.

Supreme Court of Tennessee.

November 17, 1900

Appeal from chancery court, Anderson county; R. H. Sansom, Special Chancellor.

Bill by G. McHenderson and others against Anderson county and another. From a decree in favor of plaintiffs, defendant county appeals. Reversed.

J. A Fowler and C.J. Sawyer, for complainants. Lucky, Sanford & Tyson, for defendant county.

WILKES J.

This is a bill to recover attorneys' fees from Anderson county for services rendered in bringing a defaulting trustee to settlement. It is filed by G. McHenderson, John B. Holloway and X. Z. Hicks against the county of Anderson and Underwood its trustee, and seeks to recover the sum of $3,000. The claim is based upon a suit heretofore brought in the chancery court of Anderson county against W. W. Hays, a defaulting trustee for the county, and his sureties upon his several bonds; he having held several terms of office as such trustee. The result of this chancery suit was a recovery against the trustee and his sureties for the sum of $20,036.07, and upon this recovery a lien was declared in this court for the reasonable fees of complainants. It appears that, after the judgment was taken, some concessions upon the amount were made by the county authorities, for reasons satisfactory to them; but the greater part of the recovery, to wit, $16,000, was paid to the county trustee, and was by this bill enjoined in his hands until complainants' demand should be satisfied. The injunction was dissolved upon the agreement of the county to issue interest-bearing warrants for the amounts decreed to be due the complainants, when judicially ascertained, if the county should be held liable. The county defends upon the grounds hereafter stated: (1) That Mr. Holloway was not employed by the county, and rendered no services in the suit, except such as he may have voluntarily rendered in aid of his partner, McHenderson. (2) That, as to McHenderson, he was never employed, as an individual, to prosecute the suit by the county; but, being district attorney general for the district in which Anderson county is situated, he performed such services as he did render as district attorney general, and in his official capacity. (3) That, as to complainant X. Z. Hicks, he was not specially employed in the suit by the county, but that he was county attorney for the county, upon a salary of $150 per annum, and such services as he rendered were in his official capacity, and not as an individual attorney, and that they were compensated for in his regular annual salary. (4) That, as to the lien fixed and declared by this court upon final hearing of the Hays suit to cover the reasonable fees of attorneys, it was rendered at the instance of complainants on an ex parte motion, which was not specially directed by the court or brought to its notice, and that the county had no notice of the same, and is not bound thereby. The county filed an answer setting up these defenses, and by agreement the answer was treated as a cross bill for the purpose of setting aside such lien if the court should so direct. The chancellor rendered a judgment in which it was decreed that McHenderson was entitled to recover $2,178.49, in the interest of all the complainants, and that they should settle their respective rights and equities between themselves; and the bill as to complainant Hicks was dismissed, without costs. The county appealed. The decree of the court below proceeded upon the basis that the chairman of the county court employed McHenderson to prosecute the suit, and that it was understood he was to employ his partner, Holloway, to assist him, as well as the complainant Hicks, and that the county accepted the services of these attorneys in the prosecutions and conduct of the suits.

The court of chancery appeals finds as facts that these attorneys did represent Anderson county throughout the entire litigation with Hays and his sureties, and were the only attorneys who appeared on its behalf. That court further reports the amount of labor done and service performed by each of these attorneys, and that the suits involved great labor, many questions of law, and many items of liability; that the case was conducted and prosecuted with great industry, zeal, skill, and ability, and to a successful termination; and that the services were reasonably worth the amount allowed by the chancellor, but that it was a matter of doubt whether the county was liable therefor. The court reports: That McHenderson, at the time he brought and prosecuted the suit, was district attorney general for the Second judicial circuit of the state, in which Anderson county is situated. That he said to Mr. Farmer, the chairman of the county court, who had been instructed by the county court to advise with him in regard to the Hays default, that, unless it was desired to indict Hays, he had nothing to do with the matter in his official capacity, and that he thought it was the duty of the chairman to place the matter in the hands of Mr. Young, back-tax collector for Anderson county, or in the hands of an attorney appointed by the comptroller for that purpose; that under recent statutes he was relieved from collecting taxes from delinquent trustees; that the compensation of revenue agents was 15 per cent. on the amount collected, and this would compensate the tax attorney for collecting the tax, and the county would be saved any expenses; that he advised, if any suit was brought, it be in the chancery court, so that a full and fair settlement could be made, and the liability properly apportioned among the different bondsmen; that he had nothing to do with such suits as district attorney general, and, if the chairman did not desire to put the matter in the hands of the revenue agent, that it be placed in the hands of Mr. Hicks, the county attorney. The court of chancery appeals reports that the chairman approved, if he did not originally suggest, bringing the suit in the chancery court. As a result of the conference between the chairman and Mr. McHenderson, that court also reports Mr. McHenderson was employed to bring the suit, with the understanding that he would associate with him Mr. Holloway and Mr. Hicks; that Mr. McHenderson understood that he and Mr. Hicks were employed as individuals, and not in any official capacity, and they would receive reasonable compensation for their services; that Mr. McHenderson was to be leading counsel, and that the allowance was to be made to him in his name, on behalf of himself, his partner, and his associate, Mr. Hicks. That court further reports that the several members of the county court knew of the pendency of the suit, and that the complainants were representing the county in the litigation, and were allowed to do so without protest, and the county received the benefit of their services. That court, however, does not report that the members of the county court knew that complainants had been employed as individuals, and were representing the county in their individual, and not official, capacity, as attorneys.

That court reports that unless there is some law to prevent complainants from rendering the service as individuals, and to require them to act officially, then the complainants are entitled to receive reasonable compensation. The court of chancery appeals was of opinion that complainants were entitled to recover, and affirmed the decree of the chancellor. That court holds that it is not material that complainants were employed by the chairman, and not the court, since the members of the county court knew that the attorneys were rendering the service, and did not object. Further, that the provisions of the statutes, to which reference will be hereafter made, which define the duties and fix the compensation of the district attorney for services in regard to revenue collectors, apply only to cases when the defaulting collector is proceeded against by motion in the circuit court, and have no application to cases where it is necessary, convenient, or advisable to bring the suit in the chancery court, and that it was not one of the official duties of the district attorney general to bring or prosecute such suit, especially when the suit involved complicated accounts, extending from term to term through a series of years.

We think, under the finding of the court of chancery appeals, it must be held that, if the complainants were employed at all in their individual capacity, it was by the chairman of the county court, and not by the court as a body. While it is found that the members of the county court knew that complainants were representing the county in the litigation, it is not found that they knew that it was under an employment as individuals by the chairman, or in any other way than in an official capacity and character. We are of the opinion that the chairman of the county court had no authority to employ complainants to represent the county in this litigation, as individuals, or to agree to pay anything therefor by the county. Section 660, subsec. 1, Shannon's Compilation, provides that the chairman of the county court shall have power to employ counsel to defend suits against the county, who shall be entitled to a reasonable fee, to be allowed by the court trying the case. This is the extent of the power conferred by statute upon the chairman of the county court in regard to employment of counsel, except as hereinafter stated. The authority to employ counsel to prosecute suits for the county generally rests in the county court in quarterly session, when it exists at all.

The argument is made that the chairman of the county court is the accounting officer for the county, and hence must have implied authority to...