Riley v. Bradley

• Decision Date: 22 April 1948
• Docket Number: 6 Div. 672.
• Citation: 252 Ala. 282,41 So.2d 641
• Parties: RILEY et al. v. BRADLEY.
• Court: Alabama Supreme Court

41 So.2d 641

252 Ala. 282

RILEY et al. v. BRADLEY.

6 Div. 672.

Supreme Court of Alabama

April 22, 1948

Rehearing Granted July 31, 1948.

Further Rehearing Granted April 14, 1949.

Rehearing Denied May 26, 1949.

J P. Mudd, of Birmingham, for appellants.

White Bradley, Arant & All, of Birmingham, for appellee.

By reason of disqualification, by illness, of the Chief Justice, the number of justices competent to sit on second application for rehearing in this case being reduced to six, and there being an equal division among them on questions material to the determination of the case, these facts were certified by the Chief Justice to the Governor, who thereupon appointed the Honorable J. A Carnley, of Elba, a member of the bar of the Supreme Court, to sit as a Special Justice of said Court in the determination of said case. Code 1940, Tit. 13, § 15.

FOSTER Justice.

This suit is collateral to others relating to the administration of the estate of Edward Wilkinson, Sr., deceased, who died November 6, 1941, leaving a widow and four children, naming two of them, Edward Wilkinson, Jr., and Elizabeth Wilkinson Lanier, executors of his will. Much litigation has been conducted in respect to various aspects of their controversy. Much of it has been collateral to the main issues. Such is the instant case. Wilkinson v. McCall, 247 Ala. 225, 23 So.2d 577; Riley v. Wilkinson, 247 Ala. 231, 23 So.2d 582; Ex parte Riley, 247 Ala. 242, 23 So.2d 592; Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550; Riley v. Wilkinson, 247 Ala. 579, 25 So.2d 384; Mudd v. Wilkinson, (Memo.) 247 Ala. 699, 23 So.2d 602.

The deceased had been the principal stockholder of Western Grain Company, which had proved to be a very successful business. He had created a living trust for his wife and each of his children, respectively, consisting of shares of stock in said corporation. When he died, he owned, apart from those trusts, one hundred and fifty-one shares of the common stock, which he placed in a trust created by his will for the benefit of his widow and four children, share and share alike. The Internal Revenue Department levied an estate tax. The executors filed a petition in equity, to which the estate had been removed, for instructions as to how best to raise the money to pay that tax. This is known as the petition of October 16, 1943. The court made a decree which was the subject of one of the appeals to this Court. Riley v. Wilkinson, 247 Ala. 231, 23 So.2d 582. But that decree not having been complied with, but superseded on appeal, the Revenue Department having attempted to seize the one hundred and fifty-one shares for sale to satisfy the tax, proceeded to make a sale of thirty-four shares at public outcry to Mrs. Lanier, one of the heirs who was not then a coexecutor, having previously resigned and McCall had been appointed and qualified as such. Mrs. Lanier's bid and purchase of the stock was for an amount substantially equal to the assessment which had been made. Edward Wilkinson, Jr., as coexecutor is alleged to have united in the sale to her. Mrs. Mudd and Mrs. Riley, two of the children, had lined up against Edward Wilkinson, Jr., and Mrs. Lanier. The former two contended that the sale was invalid for various reasons, not necessary here to discuss.

On June 29, 1944, a petition was filed in the matter of the estate by Edward Wilkinson, Jr., as a coexecutor by Lee C. Bradley, Jr., as his attorney. This is referred to as the 'petition of June 29.' It sought to authorize a transfer to Mrs. Lanier of the thirty-four shares of stock alleged to have been bought by her, Mrs. Lanier filed a cross bill by Mr. Bradley, as her attorney, seeking to obtain from the estate the thirty-four shares of the Western Grain Company, or recover the $50,320, paid by her for them, which went to satisfy the federal tax claim, and for that purpose to be subrogated to the lien of the United States, and be paid said sum of $50,320, out of the estate. Mrs. Mudd and Mrs. Riley were made parties to the petition and cross bill, and are now actively defending against them. The instant petition is by Mrs. Mudd and Mrs. Riley against Mr. Bradley to enjoin him and his partners from prosecuting against the executors of the will of Mr. Edward Wilkinson, Sr., deceased, the claim of Mrs. Lanier for the thirty-four shares or for $50,320, in the alternative, and from representing, advising or counseling Mrs. Lanier or Edward Wilkinson, Jr., as executor in connection with the assertion by Mrs. Lanier of her said claim against said estate or giving advice, etc., in that connection.

A temporary injunction was issued without notice and hearing under section 1054, Title 7, Code. Thereupon, Mr. Bradley moved to discharge the injunction. From a decree sustaining that motion and discharging the injunction, petitioners, Mrs. Mudd and Mrs. Riley, prosecute this appeal. Sections 757, 1052, Title 7, Code.

In making his motion for discharge much of the history of the litigation shown by the records of the circuit court and of this Court was referred to. That includes the petition of 'May 15, 1947' by these petitioners and three children of Mrs. Mudd to secure the removal of Edward Wilkinson, Jr., as a coexecutor and co-trustee of the living trusts. One ground set up is that Edward Wilkinson, Jr., and his attorney, Mr. Bradley (respondent here) are aiding, assisting and abetting Mrs. Lanier in her efforts to secure the thirty-four shares, above mentioned. That Mr. Bradley could not serve petitioners, as beneficiaries of the will, because he is also representing Mrs. Lanier in her efforts to recover said thirty-four shares of stock over the active opposition of petitioners. That he represents conflicting interests, and the petition of May 15th sought injunction against Edward Wilkinson, Jr., and his attorneys from prosecuting, maintaining or continuing any and all suits in his name or his behalf as a coexecutor or co-trustee, including the petition of June 29th. It is then alleged in the motion to discharge, after much other detail, that the circuit court, in equity, entered a decree in which it refused to remove Edward Wilkinson, Jr., as coexecutor and co-trustee, and seems to have made no specific ruling on prayer for injunction, referred to above. From that decree, appeal is pending to this Court, as alleged. The court removed McCall as coexecutor and co-trustee, and appointed the First National Bank of Birmingham in his place, and as such becomes a party to the petition of June 29th, and it becomes its duty to protect the estate in respect thereto.

It would therefore appeal from such records that the question here involved was in substance acted on by the circuit court, in equity, on the petition of 'May 15,' supra, now on appeal to this Court, though it has not actually reached the point of submission, nor has the record been received. It is insisted that the temporary injunction here was ordered by a judge who had no knowledge of the history of the litigation, and that when that was brought to the attention of the judge on the motion, he discharged it properly on the theory that the matter had been acted on and that it was improvidently issued, and that therefore it was an irregularity which sustains a motion to discharge rather than one to dissolve.

Since the substance of the matter involved on this appeal had been heard and determined by one branch of the trial court before the petition in the instant case was filed, we think that another branch of the trial court properly discharged the temporary injunction, which it had ordered as having been improvidently granted in ignorance of such prior determination. Sellers v. Valenzuela, 249 Ala. 620, 32 So.2d 520, 525; Acker v. Green, 216 Ala. 445, 113 So. 411; Barnett v. State ex rel. Simpson, 235 Ala. 326, 179 So. 208. Whether it was also considered and determined in other proceedings, as contended in the motion to discharge, need not be considered.

We also think it was properly discharged if the petition on its face, together with other records referred to, show that petitioners are not the appropriate parties to raise the question, as presented. Skyline Missionary Baptist Church v. Davis, 245 Ala. 455, 17 So.2d 533. The principle seems to be fully established that only a party who sustains the relation to client to an attorney, who undertakes to represent conflicting interests, may be entitled to object to such representation for that reason alone. 7 Corpus Juris Secundum, Attorney and Client, § 47, page 827, note 20; Otis & Co. v. Pennsylvania R. R., D. C., 57 F.Supp. 684(4); Forecki v. Kohlberg, 237 Wis. 67, 295 N.W. 7, 10; Ferguson v. Alexander, Tex.Civ.App., 122 S.W.2d 1079, 1081; Harvey v. Harvey, 202 Wis. 553, 231 N.W. 580, 583; Michel v. McKenna, 199 Wis. 608, 227 N.W. 396.

This injunction petition alleges in the ninth paragraph that respondent Lee C. Bradley, Jr., has occupied continuously the relation of attorney for one of the executors and trustees and that he 'has probably obtained information and knowledge which your petitioners verily believe enables him, if presented to this Court, to defeat the said claim of Mrs. Lanier,' and in paragraph thirteen, that petitioners are seriously handicapped in presenting an adequate defense to said claim of Mrs. Lanier, because some of the effective evidence of its invalidity is in the exclusive possession of Mr. Bradley. (What evidence or its nature is not alleged.) That at the instance of petitioners by their attorney J. P. Mudd, they obtained an order from the court requiring him to furnish such information as he has concerning said matters, and thereby obtained certain information, but they believe that he has withheld information which would satisfactorily establish the...