Wade v. Kay

• Decision Date: 30 June 1923
• Docket Number: 6 Div. 905.
• Citation: 210 Ala. 122,97 So. 129
• Parties: WADE v. KAY.
• Court: Alabama Supreme Court

97 So. 129

210 Ala. 122

WADE v. KAY.

6 Div. 905.

Supreme Court of Alabama

June 30, 1923

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Petition of James Kay for allowance of solicitor's fee for services rendered to Celia E. Wade in the cause of Celia E Wade v. George L. Wade and others and establishment of a lien therefor on her distributive share of the estate of E. L Wade, deceased. From a decree overruling demurrers to the petition, respondent appeals. Affirmed.

Ward Nash & Fendley, of Oneonta, for appellant.

James Kay, of Oneonta, for appellee.

SOMERVILLE J.

Section 3011 of the Code gives a lien to attorneys on "suits, judgments, and decrees for money," for services rendered in reference thereto. Though the lien is given on suits as well as judgments and decrees it is clear that there can be no enforcement of such a lien until the suit has been prosecuted to judgment.

The petition here exhibited is but an appendage to the main proceeding-the administration of an estate; and though it does not allege that a decree had been rendered in that proceeding allotting to petitioner's client what she was due to receive from the estate, the trial court had before it the entire record in the case, and was bound to know that such a decree had, in fact, been rendered, and was bound to decree upon the demurrer to this petition in the light of that knowledge.

This court knows of the existence and the terms of that decree by the inspection of its own records in the case of Blount County Bk., as Adm'r of the Estate of Wade v. Kay (Ala. Sup.) 95 So. 297, involving this same administration wherein the final decree of the administering court is pertinently set forth. Ala. City, etc., Co. v. Bates, 155 Ala. 347, 46 So. 776.

The decree directs the administrator to pay:

"A. All costs and expenses of the administration of said estate, together with all legal liabilities, *** together with $2,000, to be paid to Mrs. C. E. Wade [the respondent herein] in lieu of the homestead, and to Mrs. C. E. Wade $100, balance due her on her personal property exemptions, and together with $250, *** to refund her for monies paid by her on debts of the decedent."

The decree also gives to Mrs. Wade a distributive share in the balance of the estate.

Courts of equity have a general jurisdiction for the enforcement of common-law liens, and also of statutory liens when the statute does not otherwise...