Newbaker v. Alricks

The opinion of the Court was delivered by Kennedy, J. 'The plaintiffs below seem to have entertained the opinion that they had a claim upon the fund or money in the hands of the defendant below, for their compensation on account of services rendered in the line of their profession. In this, however, we think that they were entirely mistaken. The clerk of the court, and the sheriff of the county, in such cases, have certain specific fees allowed by act of assembly for their respective services; and the administrator of the intestate, making the sale in pursuance of the decree of the [185] court, may, with great propriety, pay their fees, so provided for, out of the moneys arising from the sale, because they are made chargeable by the act of assembly, which authorizes the proceeding, to the parties entitled to receive the money, and among whom it is to be distributed; but there are no fees, provided by any law, for attorneys at law, or gentlemen of the bar, acting in such cases, and performing the like services, for which fees or compensation is claimed here. It is only, therefore, in virtue of a contract made with the party, to whom they look for compensation, or their having performed the services at his special instance and request, that they can have a right to recover from him. The mere fact of the plaintiffs below having performed the services connected with the proceedings which led to the sale of the land, and under which it was made, created no lien whatever in their favour, upon the money arising therefrom', which-could entitle them to claim out of it remuneration'for their services. Unless, then, the evidence mentioned in the bills of exception tended to prove that the defendant below had employed them to perform the services charged for, or that he had derived a benefit from them, and had promised to make the plaintiffs below compensation therefor, it is clear that the evidence ought to have been rejected by the' court, as irrelevant, and not pertinent to the issue. But the evidence, so far from showing that the services were performed at the instance or request of the defendant below, or that he ever promised them payment for the same, went to show, very distinctly, that they were employed and retained by another person interested in the estate, and that they did not even act in conformity to the wishes of the defendant below, but rather in opposition to them, and that he never could, with any probability, have promised them payment of any compensation whatever for their services. The court below,, therefore, erred in admitting the evidence. In regard to the instruction of the court to the jury after the evidence was heard, we also think there was error, in leaving it, as a matter of dubious fact to the jury, to be decided by them, whether the defendant below had employed the plaintiffs or not, and that if he did, they might recover. This, we think, was wrong, because there was really no evidence given in the cause, which tended, in the slightest degree, to prove the affirmative of this question. Whether any such evidence was given or not, was a matter proper for the court to have decided, and they ought to have decided it in the negative. I will close by observing,‘that the circumstance of the jury having found a verdict in this case for the plaintiffs below, evinces, very clearly, how essential it ■ is to the administration of justice, that the rule which prohibits the admission of irrelevant or immaterial evidence, should be strictly adhered to; and that the court should never submit it to the jury to find that a fact is so, without some evidence tending to prove it. The judgment is reversed,