Gordon v. Miller

Tuck, L, delivered the opinion of this court. This appeal is from an order passed on the equity side of the Circuit court for Cecil county. It appears that three judgments were rendered in Cecil county court against Francis Gordon, which in the year 1836 were paid by Daniel Gordon, (the appellant,) and were marked-for his use, when they were confided to the professional care-of Augustus Miller, (the appellees’ intestate,) who, as attorney for the appellant, during the same year, obtained the confession of another judgment by the said Francis Gordon, for-the sum of $9780. Mr. Miller renewed writs of venditioni exponas upon the first three judgments, and issued a writ of ñeri facias on the last judgment, and renewed the said writs, from term to term, to lie in office, up to the time of his-decease, in January 1842, but no sale was made under any one of them during that time. At his death, the cases were placed in the hands of another; attorney. A sale was then made and the gross sum of $755 only, was-produced from the sale of the .property of F. Gordon, on which levy had been made. Francis Gordon having died leaving other real estate, not included in the aforesaid sale,. Daniel Gordon filed a creditor’s bill in chancery, against the heirs of Francis Gordon, obtained a decree for the sale of such other real estate, and under the decree the same was sold for-$.1400. The four judgments were the claims on which the decree, was passed. The sale being ratified, the auditor made a report in January 1853,. in. which, after deducting, costs, expenses and commis-sions,.'there remained a balance of $1284.44,. and this-sum211 lie allowed in favor of Daniel Gordon, the appellant, on account of the three oldest judgments. On the llth of May 1853, the appellees filled a petition, alleging that Daniel Gordon was indebted to their intestate, during his life, in the sum of five hundred dollars, for fees paid for him and for professional services as an attorney at law; that said Gordon being so indebted, and not being a resident of this State, assigned to him (the said Augustus Miller) that one of said judgments which was obtained at October term 1835, by Robert Oliver’s executors against Francis Gordon, for the sum of $412.56, with interest from the 3rd of June 1834. The petition refers to the sale made under the decree in equity, and alleges that Daniel Gordon is claiming the said judgment, although it belongs to the petitioners by virtue of the said assignment: it also states that the said Daniel had exhibited a copy of the judgment, omitting in the copy the entry of the use to Augustus Miller, and on this copy so omitting the use, a report of the auditor has been procured, in which the sum due on said judgment is awarded to said Daniel, when it should have been awarded to the petitioners. They therefore pray, that the report of the auditor, so far as relates to the said judgment, may not, be confirmed, and that the amount thereof may be ordered to be paid, out of the proceeds of the sale to them. With the petition is filed, as an exhibit, a copy of the said judgment, having upon it the use of Augustus Miller. In Daniel Gordon’s answer to this petition he denies all indebtedness to A. Miller, except as to some costs incurred on the last judgment against Francis, or that he ever obtained any substantial benefits from his (Miller’s) professional services; and he also denies that he ever acknowledged himself indebted to Miller for professional services, or over made him any assignment, of either of said judgements; but, Gordon declares that the assignment was made by Miller himself without his knowledge, consent or authority, and that he (Gordon) was not aware of said assignment having been made until he came to enforce his claims in chancery. [212] W. B. Bond and H. W. Archer, attorneys at law, in their deposition say, ‘‘That for the following professional services, Jo wit, taking charge of three judgments amounting in the aggregate fo more than one thousand dollars, and obtaining another judgmentfor nine thousand, seven hundred and eighty dollars, the sum of three huqdred dollars would be very rea, sonable compensation.” This deposition it was agreed should be received in evidence as if made under a commission. It is admitted that the judgment of Oliver’s Executors against Francis Gordon and others for the use of Daniel Gordon, use of Augustus Miller, was marked for the use of said Miller by an order written by himself. It is also admitted that Miller had charge of the four judgments, as counsel on the record for Daniel Gordon, from October 1830, till his death in January 184.2. That he issued Jf.fas. on said judgments to lie.” The appellees claimed, in the court below, the whole amount awarded out of the proceeds of sale, in the cause, tq the judgment which had been marked for the use of Augustus Miller. They claimed the same: Is#. Because the judgment had been marked for Miller’s pse. 2nd. Because a reasonable compensation for his services, with interest thereon from 1836, would amount to the sum claimed- The appellant’s objections, as urged below, were, because Miller marked the judgment for his own use without authority, and because he never did more than renew the Ji.fas. from term to term, and the compensation bears too large a proportion to the whole amount ultimately recovered on all the judgments. In October 1854, the court passed an order which contains the following language: “ Whereupon it is adjudged and ordered, that the petitioners, administrators of Augustus Miller, deceased, be allowed the sum of three hundred dollars, with eleven years interest thereon, and that the trustee pay the same out of the amount award, edto Daniel Gordon, in the within accoqnt of the auditor, and [213] that the said account and audit, in ail other respects be, and the same is hereby finally ratified and confirmed.” From this order Daniel Gordon appealed. It will be seen that the amount allowed by the court, jn favor of the appellees, is less than the amount awarded by the auditor upon the judgment which had been marked for Miller’s use, and from this order of the court the petitioners have not appealed. Before the court could have allowed the appellees less than the auditor had awarded upon the judgment, out of the proceeds of sale, the court must, necessarily, have held that the use had been entered upon the judgment without authority. If the use was properly entered; it transferred in equity, the whole judgment, and if Miller thereby became the owner of the whole claim, his representatives were entitled to the entire dividend allowed thereon by the auditor. The court have virtually stricken out Miller’s use; for it was certainly disregarded in the passage of the order, and the petitioners not having appealed from the same, they cannot now Insist that the court below, as a court of equity, had no authority to strike out the use. But whilst striking out the use for the purpose of doing ¡equity to Gordon, we must presume the judge considered it but proper to require that equity should be done to Miller’s representatives, and for that purpose the allowance was made to them out of the fund in court, which was the subject in controversy. But the appellant objects to this allowance, insisting that it is not reasonable under the circumstances. The three elder judgments were obtained before Daniel Gordon had any interest in them. They were assigned to him in 1836, and then he placed them under the control of Miller. Tbe fourth judgment was confessed in favor of D. Gordon, by his brother F. Gordon, without controversy. Mr. Miller appearing as attorney for the plaintiff. From October 1836 to to January 1842, when he died, he had charge of the four judgments; but no steps were taken by him for the collection of the money, further than to order executions to lie in office from term tQ term. During that period no payments were made. [214] It may be, as suggested by the appellees’ counsel, that Miller did not cause the judgments to be executed, because Daniel Gordon did not wish his brother to be pressed. After the decease of Mr. Miller the judgments came into the hands of another attorney, and by a sale of the property levied upon under the three eldest, the gross sum of $755 only, was realized. The bill in equity was then filed, for the purpose of selling the residue of the real estate of Francis Gordon, which resulted in the sale reported in this case as amounting to $1400. The auditor’s statement shows that after deducting commissions, costs and expenses, there remained the sura of $1284.44; which he awarded to the three eldest judgments. In the case of Notley Young’s Estate, 3 Md. Ch., Dec. 475, it appears that claims were placed in the hands of an attorney, which, subsequently, and before they were paid, came to the hands of another attorney. The facts show that some of the claims had'been reduced to judgments, whilst upon others suits had been brought, which were still pending. The first attorney, J. B. Brooke Jr., was employed by the administratrix of Notley Young. After her decease the claims were taken from the control of Mr. Brooke, by the administrators de bonis non. The late Chancellor Johnson having decided that they had the right of placing these claims in whosesoever hands they pleased for collection, then says: “But in the exercise of this right justice should be done the attorney who had instituted suits and obtained judgments, and this, I think, will be accomplished by dividing the usual commission of five per centum equally between him and the attorney by whom the money may be collected, and an order will bo passed accordingly.” If, for the benefit of Mr. Miller’s estate, the principle of the chancellor’s decision should be applied in the present case, we think it will be going quite as far as will be consis-, tent with equity. The gross sum of $755 was produced by the sale, under the executions. The record does not show how much, if any part, of this sum was applied to the payment of sheriff’s fees and expenses of sale; the whole amount will therefore be added to the nett proceeds of the chancery sale, ($1284.44,) [215] making together the sum of £2039.44. The one half of five per centum on that amount is £50.99. (Decided July 15th, 1859.) The order appealed from will be reversed, and instead of the amount allowed therein to the appellees they will be allowed the sum of $51, with a due proportion of interest thereon, which has been or may be received by the trustee since the sale made by him. The auditor’s reports in all other respects will be ratified and confirmed. The respective parties are to pay their own costs in this court. For the purpose of having the principles announced in this opinion carried into effect, the cause will be remanded. Order reversed and cause remanded without costs in this court.