Owens v. Gunther

• Decision Date: 08 April 1905
• Citation: 86 S.W. 851
• Parties: OWENS et al. v. GUNTHER.<SMALL><SUP>*</SUP></SMALL>
• Court: Arkansas Supreme Court

86 S.W. 851

OWENS et al. v. GUNTHER.^*

Supreme Court of Arkansas.

April 8, 1905.

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor.

Suit by H. L. Gunther against E. J. Owens and others. Petition by Rose, Hemingway & Rose, attorneys for certain minor defendants, for an allowance as compensation for services. From an order granting the petition, the defendants interested appeal. Modified.

Mary Ellen Owens, Catherine M. Owens, and Margaret Owens were the owners of three lots in the city of Little Rock, worth about $8,000. Their father, E. J. Owens, also claimed to own a life estate in these lots as tenant by curtesy. He was guardian of his children named above, and had secured an order of the probate court authorizing him to mortgage the lots for the sum of $3,000 for the purpose of educating his wards. In pursuance of this order he mortgaged his interest and the interest of his wards in these lots to E. L. Gunther for $3,000. He failed to repay the money, and Gunther brought a suit in equity to foreclose his mortgage. Owens filed an answer to the complaint, and Mary Ellen Owens, who had become of age, filed her answer by her attorneys, Rose, Hemingway & Rose. It was suggested to the chancellor that the interests of E. J. Owens, the statutory guardian, had become antagonistic to the interests of his wards, as he claimed a life estate in this property, and the court thereupon refused to permit him to appear for his wards, and appointed a guardian ad litem to make defense for the two minors. Rose, Hemingway & Rose then appeared as attorneys for the guardian ad litem, and filed an answer for the two minors, and represented them in the action, by and with the permission of the chancery court. The result of the litigation was that the court held that the mortgage was void as to the minors, and that E. J. Owens had no interests in the land as tenant by curtesy or otherwise, and the complaint of the plaintiff was dismissed. Some two or three years afterwards Rose, Hemingway & Rose, by their attorney, asked and obtained leave to have the cause redocketed, and filed a petition setting out the facts in relation to their conduct of the defense for such infants, and asked the court to allow them a reasonable compensation for their services and require respondents Catherine M. Owens and Margaret Owens to pay the same, and that the sum allowed be declared a lien on the estate of respondents. The respondents appeared by their guardian, and resisted the application for an allowance of an attorney's fee out of their estate. The court made the allowance against each of the...