Watson v. Motley

• Decision Date: 12 April 1917
• Docket Number: 7 Div. 857.
• Citation: 75 So. 147,201 Ala. 25
• Parties: WATSON v. MOTLEY.
• Court: Alabama Supreme Court

75 So. 147

201 Ala. 25

WATSON v. MOTLEY.

7 Div. 857.

Supreme Court of Alabama

April 12, 1917

Appeal from City Court of Gadsden; John H. Disque, Judge.

Assumpsit by L.C. Watson, as trustee, against George D. Motley. Judgment for defendant, and plaintiff appeals. Affirmed.

The pleas interposed were the statute of limitations of two years, and that the bankrupt estate of which plaintiff is the trustee was closed, and the trustees discharged on or about February, 1910, and that defendant was the attorney for F.P Duncan, and that the money was received by him as such attorney after defendant had recovered same from said Duncan under a contract by which defendant was to receive 50 per cent. of the amount recovered by said Duncan as his fee for professional services rendered in recovering the same, and defendant avers this was a reasonable fee, and that he retained 50 per cent. of said amount as his fee under said contract, and, without any demand or notice on the part of plaintiff or any one else not to do so, he paid the other 50 per cent. over to his client, the said Duncan, as he is bound to do. The other pleas set up the same state of facts in varying phraseology. The replication is that the cause of action stated was for money collected by said defendant as assets of the estate of Duncan & Co., F.P. and F.A. Duncan who were formerly adjudicated bankrupts in the District Court of the United States for the Northern District of Alabama and plaintiff is the trustee of said estate; that said defendant was the attorney for the said bankrupt in said bankruptcy proceeding, and had full notice of the fact that said moneys collected by him were the assets of this estate in bankruptcy. The agreed statement of facts in brief are: That on January 20, 1909, an involuntary petition in bankruptcy was filed against Duncan & Co., a partnership composed of F.P. and F.A. Duncan, and against each of them as individuals, and on February 11, 1909, the partnership and the individuals were duly adjudged bankrupts. L.L. Herzberg was elected trustee of the estate by the creditors, and qualified and gave bond, and as such trustee paid to the creditors the first and final dividend on their claim, and said estate was closed and the trustee discharged on November 11, 1911. That on January 22, 1915, the First National Bank of Gadsden, a creditor of said estate, filed its petition to open said bankrupt estate, alleging that certain assets owned by F.P. Duncan at the time of the bankruptcy, namely, an undivided interest in certain lands in Perry county, Ala., were not included in the bankruptcy schedule, and not administered in the bankruptcy proceeding, and on February 4, 1915, the district judge in and for said district reopened the bankruptcy proceeding for further administration of the estate, referring the same generally to C.H. Young, referee, and plaintiff, L.C. Watson, was elected trustee of said estate and duly qualified as such, and is now acting as trustee of said estate. On September 5, 1910, Duncan & Co. and the individuals were duly discharged in bankruptcy, and on September 20, 1910, F.P. Duncan brought suit to recover one-third interest in certain lands in Perry county, which he claimed to own by laws of descent, and that said suit finally resulted in the recovery by said Duncan of said lands sued for, together with damages for detention therefor, the cause having been twice appealed to the Supreme Court of Alabama, and a final decision in favor of Duncan having been rendered on September 7, 1914. Neither the said land nor F.P. Duncan's interest therein was scheduled as assets of his estate in the schedule of assets and liabilities. That defendant George Motley was the attorney for the bankrupt, having filed their schedule of assets and liabilities, and was the attorney for said Duncan in the suit in the circuit court of Perry county, and in the Supreme Court of Alabama, and on January 26, 1913, said Motley collected the sum of $2,608.93 from the circuit clerk of Perry county, of which amount the sum of $2,158.16 was for damages for the detention of the land sued for, and the balance was interest and 10 per cent. damages allowed by the Supreme Court. Of this sum he paid to one Arthur W. Stewart the sum of $25 for professional services in said suit, and on January 27, 1915, he paid F.P. Duncan $1,291.96, and he retained the balance of the money, claiming the right to retain the same as a reasonable attorney's fee, and that said Motley has lived in Gadsden since the year 1908, and that articles about the Duncan suit were published in the daily papers on June 25, 1913, and that 50 per cent. of the value of the recovery was a reasonable attorney's fee.

Rutherford Lapsley, of Anniston, W.J. Boykin, of Gadsden, and Keith & Wilkinson, of Selma, for appellant.

George D. Motley, of Gadsden, for appellee.

MAYFIELD J.

Appellant, as trustee in bankruptcy, sued appellee as an attorney of the bankrupt, seeking to recover money which the attorney collected as the proceeds of a judgment which the bankrupt had recovered as damages and costs in an action of ejectment. The only counts were one for money had and received, and another in trover for conversion of the funds.

The defendant interposed the general issue, and several special pleas setting up the facts under which the money was collected by the defendant and paid over to the bankrupt, except that retained by him as compensation for his services as attorney in procuring the judgment and collecting the proceeds.

Demurrers were interposed, but were overruled, to these special pleas or to most of them which are important on this hearing. The plaintiff then filed a special replication to the pleas, to which a demurrer was sustained. Thereupon trial was had by the court without a jury, on an agreed statement of facts, and judgment was rendered for the defendant. Plaintiff, as trustee in bankruptcy, prosecutes this appeal, here assigning errors to rulings on the demurrers as above indicated, and an exception to the judgment rendered.

We are of...