Wood v. City of Birmingham
| Decision Date | 17 May 1945 |
| Docket Number | 6 Div. 302. |
| Citation | 247 Ala. 15,22 So.2d 331 |
| Parties | WOOD v. CITY OF BIRMINGHAM. |
| Court | Alabama Supreme Court |
Hugh A. Locke, Wade H. Morton, and Andrew W. Griffin, all of Birmingham, for appellant.
Geo. P. Bondurant, of Birmingham, for appellee.
Basil A. Wood (appellant in the proceeding) filed an original bill in equity against the City of Birmingham, a municipal corporation (appellee in this proceeding). The bill alleged in substance that complainant was one of a class of municipal stadium certificate owners and that these certificates were sold under a trust agreement set forth in the bill. The suit proceeded to a final decree in the trial court. Prior to rendition of the final decree Basil A. Wood filed a motion to fix an attorney's fee for his services in connection with the trust. The question of the attorney's fee was reserved for further orders by provision of the decree. The present proceeding is on the motion to fix the attorney's fee.
The City of Birmingham took an appeal from the foregoing decree in the original action to this court. In this court the decree of the lower court was modified and affirmed. See City of Birmingham v. Wood, 243 Ala. 480, 10 So.2d 666. Reference to that decision is made for a full understanding of this case. It is sufficient to state here that a fund of $100,000 was raised by the sale of municipal stadium certificates, each in the amount of $100. The complainant, Basil A. Wood, is the owner of one of these certificates. None of the other certificate owners joined in the action. This fund was put into a trust fund, to which the City of Birmingham agreed to contribute an amount not in excess of $150,000 for the construction of the stadium. The certificates were not the general obligation of the City of Birmingham and were payable only out of the trust fund. It was further agreed that there should also be deposited in the trust fund the gross income derived from the use of the stadium. It was further agreed that out of the trust fund should be paid certain amounts in the order of their priority as follows:
(a) Proper and reasonable expense of maintaining, repairing and operating the stadium and its equipment.
(b) Repayment to the City of Birmingham, without interest, of such funds as it shall have advanced for the construction and equipment of the stadium.
(c) Payment and retirement of the certificates with interest at 5% from date as therein described.
It developed that the stadium cost $108,000 more than contemplated and instead of advancing $150,000, the city advanced $258,000. During 1929 a War Memorial entrance to the stadium was erected at a cost of $17,114.14, which was paid for out of the trust fund by the city. The city also made disbursements out of the trust for certain expenses. Reference to the decision of this court, supra, will show the city was required to return to the trust fund the amount of $17,114.14 expended for the War Memorial entrance. Also the city was denied priority as to its claim on the trust fund for the additional $108,000 spent on the stadium.
As stated, the present controversy was tried in the lower court on the petition to fix the attorney's fee. We quote in part from the decree of the lower court:
'The suit was not conducted for the purpose of producing a benefit for the City of Birmingham * * *, and no benefit whatever has accrued to the City of Birmingham by the final judgment of the Supreme Court in the cause. * * *
'It is therefore, considered, ordered, and adjudged, and decreed by the court that the plaintiff's petition insofar as it might be construed as seeking a decree requiring the City of Birmingham, as Trustee, or otherwise, to pay the plaintiff an attorney's fee (out of the fund derived from the operation of the stadium) prior to the reimbursement in full of the City of Birmingham for the $150,000.00 expended by it in the construction and erection of the stadium (and for the payment of which said claim for $150,000.00 the City of Birmingham has priority over the claims of the certificate holders) be and the same is hereby denied, disallowed and dismissed.
'It is, therefore, considered, ordered and adjudged and decreed by the Court that jurisdiction of the plaintiff's petition insofar as it may be construed as seeking a decree directing the payment of an attorney's fee to plaintiff out of funds that may become available in the future for the retirement of the stadium certificates * * * is retained with leave to the plaintiff to apply to the court for the hearing of said aspect of said petition when the plaintiff considers himself in a position to reasonably satisfy the court that an actual and real benefit will accrue to the holders of the stadium certificates as a consequence of the final decree of the Supreme Court rendered in this cause.'
The motion to fix an attorney's fee, after alleging the items of the work done by the attorney, concludes with a prayer, from which we quote in part: '* * * that this Honorable Court decree the said sum due and payable to the said Basil A. Wood, and designate the fund from which the said sum shall be paid; and order the payment thereof; and tax such sum as part of the administration expenses of the Stadium Trust, or from other appropriate funds of the Defendant; and Plaintiff prays for different and more general relief, and will ever pray.'
We think it is clear that the decree taken in connection with the petition on which it is based shows two separable and distinct issues: first, whether the attorney, if entitled to any compensation at all, is entitled to be paid out of the stadium fund prior to the right of the City of Birmingham to reimbursement for the $150,000 advanced by it and, second whether the attorney, if entitled to any amount, should be allowed payment from the fund for his services after the city has received reimbursement for the aforesaid $150,000. The right to payment under the first issue must necessarily be predicated on services of benefit to the common or entire interest, that is, both the City of Birmingham and to the stadium certificate owners. Dent v. Foy, 214 Ala. 243, 107 So. 210; Strong v. Taylor, 82 Ala. 213, 2 So. 760. The right to payment under the second issue is predicated on services of benefit only to the owners of the stadium certificates. In other words, there are two separate and distinct claims. Accordingly, we consider that a final decree could...
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