Rogers v. O'Mary

• Decision Date: 02 November 1895
• Citation: 32 S.W. 462
• Parties: ROGERS et al. v. O'MARY et al.
• Court: Tennessee Supreme Court

32 S.W. 462

ROGERS et al. v. O'MARY et al.

Supreme Court of Tennessee.

November 2, 1895.

Appeal from chancery court, Claiborne county; Hugh Kyle, Chancellor.

Suit by Jesse L. Rogers and others against George O'Mary and others. From a decree of the court of chancery appeals reversing a decree for complainants, they appeal. Affirmed.

Jesse L. Rogers, for appellants. J. E. Johnson, for appellees.

WILKES, J.

This is a bill to collect attorney's fees from the several defendants, on the idea of a joint and several liability for the same. The chancellor gave decree for $324.50, and defendants Perkins, O'Mary, Prinnes, and Glickman, called the "Campbell county defendants," have prayed and perfected an appeal. Defendants Miller and King also appealed, but did not perfect such appeal. The cause has been heard by the court of chancery appeals, which reversed the decree of the chancellor, and dismissed complainants' bill, and they have appealed to this court, and assigned several grounds of error. We need not dispose of them seriatim, but will consider them together.

The facts, as found by the court of chancery appeals, so far as necessary to be stated, are that the complainants, as attorneys, filed a general creditors' bill in the chancery court at Jacksboro against the Citizens' Bank of Jellico, to fix the rights of all creditors, and provide for their payment, and to set aside a conveyance of its property by the bank. Soon after the bill was filed, the bank made an adjustment with its creditors, by which they agreed to receive the amounts due them in certain time installments. In consequence of this adjustment, the assets of the bank were returned to it, and the receiver appointed under the creditors' bill was discharged. The agreement entered into between the bank and its creditors appears to have been made without the co-operation of complainants, and over their objection, so far at least as it pertained to their fees, which the bank agreed to pay in such sum as the court might fix and adjudge. The creditors having agreed with the bank, the court fixed complainants' fees at $150, and awarded execution against the bank therefor; complainants, however, not being present at the time. They declined to accept this sum thus fixed, and brought their bill against King and Miller, residents of Claiborne county, and the appellants, residents of Campbell county, to hold them jointly liable for reasonable fees, which they claimed should be $500. The suit was based on the ground that the defendants were depositors in the bank, and had agreed to the compromise, and consented that the funds of the bank be withdrawn from the court, where they had been impounded under the general creditors' bill. The appellants (called the "Campbell county defendants") pleaded in abatement that they were residents of Campbell county, and served in that county, and could not be sued in Claiborne county, as there was no privity between them and the Claiborne county, defendants, in the employment of complainants. On argument, this plea was held sufficient as to form and substance, and issue was thereupon taken on it, and the chancellor held that there was such privity and joint obligation as made the suit maintainable. The decree overruled the plea, and time was granted for 30 days to file an answer; and it was agreed that, if answer was made, it should not affect the hearing of the plea in the supreme court, and should not operate as a...