McGraw, et al. v. Tillery, et al.

McGraw, et al. v. Tillery, et al. Petition for Intervention. (Decided June 29, 1912. 59 South. 567.) Appeal and Error; Rcvieio; Theory Below. — Where the petition did not count on that theory the erroneous overruling of demurrers to petition for intervention cannot be sustained on the theory that petitioners were entitled to a reasonable fee for service rendered respondent under section 3010, Code 1907. Appeal from Lee Law and Equity Court. Heard before Hon. W. F. Dickinson, Special Judge. For statement of tbe facts and contents of tbe petition see 176 Ala. 451; 58 South. 421. Motion for rehearing denied. Barnes &. Denson, for appellant. No brief reached the Reporter. Stallings & Drennen, for appellee. No brief reached the Reporter. [MAJORITY — ANDERSON, J.] ANDERSON, J. The appellees, by their petition, sought the enforcement of their contract; and, whether it was or was not binding upon these appellants, they •could not enforce same, except by an original or supplemental bill. — 3 Mayfield’s Digest, pp. 316, 317. The trial court erred in not sustaining the respondents’ demurrer to the petition. It may be conceded that the apellants were entitled to a reasonable fee, to be taxed as cost against the respondents, if legally employed to represent them under the terms of section 3010 of the Code of 1907; but the petition did not proceed upon this theory and the trial court cannot be justified upon its finding, or the respondents concluded thereby, because the appellants Avere entitled to a fee under a statute which they were not attempting to invoke. After the court improperly overruled the respondents’ demurrer, they were not bound by the proof as to the reasonableness of the fee to Avhich the petitioners may have been entitled, under the statute, as their petition did not invoke the statute, but relied upon the contract alone, and sought the amount fixed by same. The decree of the county court is reversed, and the cause is remanded. Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.