German v. Browne

TYSON, J. This is'an appeal from a decree refusing to dissolve an injunction and overruling a demurrer'and motion to dismiss the petition filed by the appellees to enforce a lien as attorneys for the complainant in the suit in which the petition was filed'. It appears that ihe appellees,' composing two firms' of lawyers-, were employed by one. Yerehot to institute the suit- in wliielr the petition was filed; that he died leaving a will in which Marie L. E., his wife, was executrix; that- the suit was revived and conducted to a final decree under' which, according to the pcitition, funds to the amount of $8,120.10 were collected, of. which $4,-4'66.55 was paid to the .executrix in two -installments, one in July and the other in August, 1900, and $114.32 disbursed for taxes, leaving in the hands- of the petitioners the sum of $3,539.23.. It is .alleged in the petition tliat the amount of the collections retained, by petitioners was intended to be reserved as and for the fees'for representing the Complainant. i.n. the litigation, find 'that they “thought the said complainant was sat-’ isfied1 therewith as she acquiesced therein for more than [436] a year; but that on to-wit, 26th day of August, 1901, she. repudiated the same and brought suit in the circuit court of Shelby county, Alabama,” against petitioners, to recover twenty-five hundred dollars of said money so retained. It is further alleged that their client, Marie L. E., having, repudiated tire settlement, their lie¡n on the whole fund is intact and the petition seeks the enforcement of it-. The amount of the fee is alleged to be |5,-'500 and they ask that. Marie L. E. be required to pay the sum received by her into court, and that the fee be ascertained and enforced against, the entire, sum 'collected to the extent of the amount of the fee found to be due them. A preliminary injunction against the prosecution of the law case was. granted, and Marie L. E. as executrix Avas ordered to answer the petition) as in the case of an original suit. The defendant appeared and answered, incorporating in her ansAver a demurrer to the petition, and also made motions to1 dismiss the petition for want of equity and to dissolve the injunction. The demurrer Avas overruled and the motions denied. A petition, like an original bill, must contain Avitbin itself sufficient matter' of fact to maintain the plaintiff’s case, and the averments must he direct and not by Avay of inference of one fact from another. “It is. not sufficient in chancery pleading simply to aver the evidence from Avhi'ch a required fact, might he inferred, although the evidence itself, if uncontra,dieted, and not overcome by opposing proof might he sufficient to induce a chancellor or jury to find the fact frour.it.” — Bliss v. Anderson, 31 Ala. 612, 625; Seals v. Jobinson, 75 Ala. 363; Harris v. Nixon, 9 Pet. 483. The petition, tested by these plain rules, is fatally defective. It does not disclose there is any cause pending in which it could he instituted. It shows a final decree, and collection .and distribution of funds. Unless the matter of the petition arises in a pending cause or concerns some matter over which the court has some special authority or jurisdiction, the litigation must assume the form of an original suit. — Sayre v. Elyton [437] Land Co., 73 Ala. 85; Foscue v. Lyon, 55 Ala. 440, 457; 2 Daniel’s Chancery Pl & Pr. §§ 1587-1604. Testing the petition as a bill, as it may he, when, defendants are required to answer as in original proceedings, it is equally defective. The case made by it is simply an employment of petitioners as attorneys, the rendition of service, the collection of money under a final decree:, a'payment of a portion of the sum collected to their client, without any statetmemt of account or other settlement, the lapse of a year and a suit at law by the client, against them to recover twenty-five hundred dollars of the sum retained by them. It is on these facts that the petition was filed and the injunction issued against the further prosecution of the suit at hnv. There is no disclosure of any settlement, to he repudiated by the client, nor any agreement, express or imulied, for the1 retention by the attorneys of the sum not paid over by them, nor any adjustment or agreement as to the, fees to be charged for their services, except the implied contract that reasonable compensation should he allowed. The payments made by them to .their client, in-the absence of all allegation of mistake or fraud, -must bei regarded as voluntary and as a relinquishment of their lien upon the money so paid.' — 3 Amer. & Eng. Eucy. of Law, (2d ed.), 450; Weeks on A ttys. § 375. It is true they would have a right to hold so much of the money now in their possession as will be equal to the amount of their compensation for the services rendered, whenever the value of those services are ascertained. But. what necessity is there for a suit in equity t,o adjust the amount of the fee and its satisfaction pro tanto out of this money? We can see none. The law court acquired jurisdiction of this matter before this proceeding was instituted a,nd can afford the fullest relief to which the petitioners can show themselves entitled. It certainly has jurisdiction to determine what their compensation ought to be and is quite as competent to adjudge that question as a court of equitv. Tii short, the. bill or petition discloses no refsn.n fen:' interfering with the exercise of jurisdiction bv that court — no defenses are shown which would he available here, aud not available in that court. — 1 Pom. Eq. -Tur.. § 179. [438] /The decree appealed from must ,be reversed, and a decree will be.here entered dissolving the injunction and dismissing the petition. Reversed and rendered.