McLendon v. Truckee Land Co.

• Decision Date: 30 June 1927
• Docket Number: 6 Div. 923
• Citation: 114 So. 3,216 Ala. 586
• Parties: McLENDON v. TRUCKEE LAND CO. et al.
• Court: Alabama Supreme Court

114 So. 3

216 Ala. 586

McLENDON v. TRUCKEE LAND CO. et al.

6 Div. 923

Supreme Court of Alabama

June 30, 1927

Rehearing Denied Oct. 20, 1927

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by J.S. McLendon against the Truckee Land Company and Jessica B. Cairns, to enjoin actions at law and for an accounting. From a decree dissolving temporary injunctions and dismissing the bill, complainant appeals. Affirmed in part, and in part reversed and remanded.

Motion to discharge injunction as reinstated was not waived by submission with motion to dissolve. Code 1923, § 8302.

In the third paragraph of the bill it is averred tat on March 17 1923, Mrs. Cairns had filed a motion against appellant, as an attorney, in the circuit court of Jefferson county, Ala., for a summary judgment, in the sum of $5,100.35, alleged to have been collected by appellant, for the respondent as an attorney.

The fourth paragraph avers that the Truckee Land Company had filed a similar motion against the appellant, in the same court, to collect the sum of $695.83, alleging such amount to have been collected by the appellant, as attorney, and to have been withheld after demand by the movant.

In the fifth paragraph it is averred that T.C. Cairns, during the years 1925 and 1926, was the legal owner of a considerable amount of real estate in Birmingham, and that said Cairns during said time, was dealing extensively in real estate, in the city of Pensacola, Fla., as the agent or attorney of Jessica B. McLeod, who held legal title to all the property handled by said Cairns in Pensacola, and that the said Jessica B. McLeod married the said T.C. Cairns, on July 14 1926, and has since then been his wife, and is the same person who filed the said motion for summary judgment.

In the sixth paragraph it is averred that the said respondent Cairns should not recover against appellant in said motion or suit, and that appellant has legal and equitable defenses against said claim, as follows:

(a) That complainant is not liable to the respondent, as alleged in her said motion.

(b) The relation of attorney and client never existed between the said Jessica B. Cairns and J.S. McLendon, relating to the matter which is the ground or claim for the application or motion.

(c) To give the right of proceeding summarily against an attorney, it is essential that the relation of attorney and client should exist between the parties, in relation to the subject-matter in dispute. Such relation has never existed between the movant, Jessica B. Cairns, and J.S. McLendon, this complainant.

(d) That the money claimed in said motion by Jessica B. Cairns is, in equity, the money of the Truckee Land Company, a corporation, and subject to a lien for attorney's fees of J.S. McLendon, which this complainant can show, if permitted to do so, and which, if proven, would constitute a valid, equitable set-off against the said claim of the respondent Jessica B. Cairns.

In the seventh paragraph it is averred that appellant has defenses against said motion of the respondent Cairns, which are not available in a court of law, but which would be considered by this court, and that to permit the prosecution of said motion or suit at law against complainant will produce a multiplicity of suits.

In the eighth paragraph it is averred that the respondent Truckee Land Company should not recover against complainant in its motion, and that complainant has legal and equitable defenses against said claim, as follows:

(a) That complainant is not liable to the respondent, as alleged in its suit or motion.

(b) That the money claimed in said motion came into the hands of complainant, as attorney for the Truckee Land Company, and he is retaining same, as provided in section 6262 of the Code of 1923, so as to apply same on said account as part satisfaction for attorney's fees due this complainant by the Truckee Land Company. Wherefore complainant alleges that there is no reason for the recovery by the respondent Truckee Land Company, a corporation, of the sum of money sued for, as said claim for attorney's fee constitutes a valid, equitable interest for and against said claim of the respondent Truckee Land Company.

In the ninth paragraph it is averred that appellant has defenses against said motion by the respondent Truckee Land Company, which are not available in a court of law, but which will be considered by this court; that to permit the prosecution of said motion or action at law against the complainant would produce a multiplicity of suits.

In the tenth paragraph it is alleged that there is a long, complicated, and disputed account existing between the Truckee Land Company and this complainant, as to attorney's fees for services rendered by this complainant to the Truckee Land Company, which claim is more than the amount claimed in said motion or suit at law, and that any money in the hands of the complainant, belonging to the Truckee Land Company, should constitute a valid, equitable set-off against said claim of respondent Truckee Land Company.

In the eleventh paragraph it is averred that the complainant, as an attorney for the Truckee Land Company, rendered many different and various legal services for the Truckee Land Company, at various times, beginning July 14, 1926, up to March 10, 1927, for which he has not been paid, and that it is necessary for an accounting to ascertain what amount is due to him for said services, after applying thereon any amount found in the hands of this complainant belonging to that respondent.

It is further averred that part of the services rendered for said land company, by appellant, and for which he has not been paid, was the defense of a foreclosure sale of seven different suits, in Pensacola, Fla., involving the total amount of $148,431.67 as due on said purchase-money mortgages, and the filing of a $10,000 suit in Montgomery county, for damages, and many other matters; that five of the above suits were transferred from the circuit court, or court of like jurisdiction, in Escambia county, Fla., to the United States District Court, at Pensacola, and that an appeal was taken from an interlocutory order and tried in the Court of Appeals at New Orleans.

The prayer of the bill was for an order restraining the further prosecution, by the said Cairns and Truckee Land Company, of their said motions in the circuit court of Jefferson county pending final hearing and decree in this cause, and that, upon a final hearing, the prosecution of said motion be permanently enjoined, and for an accounting between the Truckee Land Company and appellant, to ascertain what amount, if anything, that company was due appellant, and to apply thereon the amount ascertained to be in...