German, Execx. v. Browne et al.

German, Execx. v. Browne et al. Petition, in Ohancery to enforce a Lien in favor of Attorneys for Fee. 1. Petition in chancery suit; sufficiency of averments.-^-A petition, seeking relief in a chancery court, like an original bill, must contain within itself sufficient matter of fact to authorize relief to the petitioners, and the averments must be direct and not by way of inference of one fact from another. 2. Same; how petition considered. — Unless the matter of the petion filed in a chancery court 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. 3. Petition for enforcement of attorney’s lien for payment of fee; when insufficient. — When a petition filed by attorneys, seeking to enforce a lien in their favor for a fee alleged to be due them from the complainant in a suit in which the petition was filed, avers simply an employment of the petitioners as attorneys, the rendition of services, the collection of money under a final decree, a payment of a portion of the sum collected to their client without any statement of account or other settlement, the lapsei of a year and a suit at law by the client against the petitioners to recover a portion of the sum retained by them, and there is averred no disclosure of the settlement to be repudiated by the client nor any agreement, express or Implied, for the retention by pe'itioners of the sum not paid over by them, nor any adjustment or. agreement as to the fee to be paid for their services, except the implied contract that reasonable compensation should be allowed, such petition cannot be maintained, as it is insufficient to authorize a court of chancery to exercise its jurisdiction. Appeal from the Chancery Court of Shelby. Heard before the Hon. Richard B. Kelly. The. appellees in this case, filed a petition in the Chancery Court of Shelby county in a cau.se entitled Marie L. E. Gemían, Executrix of tlie estate of Joseph Verchot, against the American Pig Iron Storage Warrant Company and others. Marie L. E. German, was formerly Marie L. E. Verchot. The petition was in words and figures as follows: “Come W. P>. Browne and J. T. Leeper who reside in Columbiana, Shelby county, Ala., and Cecile Browne and E. II. Dryer who reside, in Talladega, Talladega county, Ala., all of whom are over twenty-one years• of age, and present this petition in the said cause: in said court against said complainant, Marie L. E. German, as executrix of the estate of Joseph Verchot, deceased, and allege and pray as follows: “1. Before the institution of this suit said W. B. Browne and J. T. Leeper, practicing solicitors composing the law firm of Browne & Leeper, and said Cecil Browne and E. H. Dryer, practicing solicitors composing the: law firm of Browne & Dryer, were employed by Joseph Verchot, complainant’s intestate, to institute and conduct this suit and accordingly did institute and conduct it through out. The said Joseph Verchot died pending the litigation and before any final decree was rendered! in this court therein, and the suit was revived in the name of said complainant as his executrix, by said Browne & Deeper and Browne & Dryer, and the litigation proceeded and was. thereafter conducted by said Browne & Leeper and Browne and. Dyer as her solicitors, who,.the said Browne & Leeper and Browne & Dyer, represented complainant in this suit from the time of, and before, its institution until the collection of the moneys hereinafter mentioned under the final decree. “2. The said Browne & Leeper and Browne & Dryer as such attorneys in the preparation of the original bill in this case and in the conduct of the suit, did an immense amount of work as attorneys for complainant, which required much skill and constant and unremitting attention for many year's, the reasonable! value of which work and service as such attorneys- is, to-wit, fifty-five hundred dollars, and which constituted and constitutes a lien on the final decree rendered in this cause in favor of file compaiuant and upon the moneys collected on and under said decrees in said cause in favor of complainant. “3. On or about Juno. 30th, 1900, said Browne & Dryer, as such attorneys for complainant,, collected of A. J. Perry, receiver in said cause, under said final decree, the sum of to-wit, $5,559.04, and on or about August 1st, 1900, under said final decree, they collected frohi respondent American Pig Iron Storage Warrant Company, through one of its solicitors, Capt. W. C. Ward, the further sum of, to-wit, $2,501.06, making an aggregate sum of $8,120.10, collected by and on account of the final decree of this court in this cause for and on account of the complainant; but out of this sum on or about, June, 30th, 1900, said Browne & Dryer as such solicitors, paid Hon. Samuel Will' John as, and who was, attorney for the State of Alabama and of Bibb county, $114.32 on account of and for taxes which constituted a first lien on said fund, and Avhich said l’eceiver required them to pay at the time of and contemporaneously with the payment by him of said sum of $5,559.04 aforesaid. Of said moneys collected on said decree there Avas turned over to said complainant the aggregate sum of $4,466.55, being the sum of, to-wit: $1,444.72 on or about July 3d, 1900, and $3,021.83 on or about August 14th, 1900. The amount received by said Browne & Deeper and Browne & Dryer out of said moneys collected under and on account of said final decrees Avas intended to1 be reserved ánd retained by them as aud for tlxeir fees for representing complainant in this suit; and they thought the said complainant was satisfied therewith as she acquiesced therein for, to-wit, more than a year; but on, to-Avit, the 26th day of August. 1901, she repudiated the. same and brought, a suit in the circuit court of Shelby county, Alabama, against said BroAvno ¿I Dryer and said BroAvne & Deeper as individuals and as partnerships, claiming twenty-five hundred dollars for money bad and received; the basis of-the said suit and the object thereby sought to be accomplished being to recover of these petitioners $2,500 of said moneys collected by them on said final decree in this cause in this 'court, upon the whole of Avhich fund collected, to-wit, $8,120.10 these petitioners have a lien as aforesaid. . “4. Petitioners are advised, and on suda advi ce'allege, that said' complainant having, elected to- disaffirm the settlement attempted to be made with her by petitioners as her attorneys, their lien continues on the entire fund collected by them for complainant in this cause, as well upon that they turned over to complainant as to that they still have on hand, and that the reasonable value of their services as such attorneys for complainant being such sum of fifty-five hundred dollars, the said complainant should be ordered and decreed to pay into this court the whole of said moneys turned over to' her, to-wit, said $4,466.55, to abide by the orders and said decree of this court on this petition, to- the end that the lien of these petitioners for the reasonable value of their services for complainant in this cause may be decreed and enforced upon the said funds which are the; proceeds of said decrees, and that this court having jurisdiction to the said funds which were collected, under its orders and decrees in this cause; retain said jurisdiction to a final distribution of such funds which involves a determination of the amounts these petitioners-are reasonably entitled to be paid therefrom and a decretal order that such sums be- paid them out of said funds. “5. Said complainant is over- 21 years of age' and resides in Columbiana, Shelby county, Alabama. “The premises considered, petitioners, W. B. Browne, J. T. Deeper, Cecil Browne and E. H. Dryer, pray that the said complainant, Marie L. E. German as executrix of the estate of Joseph Verohot, deceased, ■ he made a party respondent to this petition, that she be required by a rule of this court to show cause why she should not be perpetually restrained from proceeding with said suit at law, and that until said rule is dissolved the jurisdiction of this court he) maintained, and said complainant he restrained from prosecuting said suit at law; that a reference he ordered to ascertain the reasonable value'of the professional services of these’ petitioners as solicitors for complainant, throughout said litigation in "this case, that such sums when ascertained be declared and decreed liens on the said moneys yet in petitioners’ hands as well as upon, that turned over by them to complainant, that complainant he ordered and decreed to pay said sum of $4,466.55 into court to await and abide the final orders and decrees of this court on this petition, that upon a final hearing hereof it he ordered and decreed that tírese .petitioners, retain that part of said funds collected by them in this cause they now have on hand, to-wit, $3,539.23, and be paid'the further sum of, to-wit, $2,010.77 out of the remainder of said moneys which were1 turned over to 'complainant by them, and complainant and ¡á. W. John her attorney and- solicitor of record he perpetually restrained from prosecuting said suit at law, and if petitioners are in any wise mistaken in the special relief prayed for, they ask for such other, further and general relief as to this court upon final hearing shall be deemed just, and petitioners will ever pray, etc., said petitioners hereby submitting to the jurisdiction of this court and offering’ to abide by and submit, to its orders and decrees in the premises.” To this petition the respondent Marie L. E. German filed an answer in which she incorporated a demurrer. This demurrer was upon the following grounds: “1st. For that it dot's not appear from said petition, that there is any fund in this court or under its control upon which to fasten a lieu. 2. For that it appears from said petition that there is no fund in this court nor under its control, nor that it can rightfully take passesssion of. upon which a lien can he decreed to exist in favor of petitioners. 3. For that it appears from said petition that all of the fund of which they once had possession, and upon which they had a lien for their reasonable fees so long as they retained said fund in their possession, has been voluntarily and. rightfully paid hv them to the defendant and appropriated to their own use. Whereupon said lien ceased and was discharged. 4. For that it appears from said petition that the petitioners have an adequate remedy at law. 5. For that it does not appear from said petition that there is any reason or ground for the interposition of a court of equity in said action at law. fi. For that it doe® not appear from said petition that petitioner® will be embarrassed or hindered or prevented from asserting all their just rights'in said action at law. 7. For that it appears from said petition that said claim, debt or demand accrued to petitioners, on to-wit, the 14th day of August, 1900, and it does not appear that it was presented to M'arlie L. E. German as executrix of the will of said decedent or filed in. the probate court of Shelby county within twelve months thereafter, and for that it. is barred.” The respondent also, moved the court to dismiss the bill for want of equity, and to dissolve the injunction for want of equity in the petition. On the submission of the case upon the petition, the demurrer and motions, the chancellor rendered a decree overruling the demurrer, the motion, to dismiss the bill for want of equity, and the motion to dissolve the injunction, and from this decree appeal was taken, and the rendition thereof was assigned as error. Samuel Will John, for appellant. The right of a possessor of money to hold it for the satisfaction of some demand, depends essentially upon the actual possession Of the money by an) attorney or the court, and if the attorney eventually pays away the money his lien is thereby lost, — Pteirarl Flowers, 44 Miss. 513; s. O. 7 Am. Rep. 797; Nichols v. Pool, 89 Ills. 491; Tbs# & Co. r. Rohcrlson It. íG Go. 46 Ala. 487; Manning r-. 'Leighton, 65 Vt. 84 ; s. o. 24 L. R. A. 684. Admitting all the facts apparent on the face of the petition, well or illy pleaded, the. petitioners can have no relief whatever, and therefore the motion to dismiss for want of equity should have prevailed. — Peals v. Robinson. 75 Ala. 368-9; Pale r. Hinson, 104 Ala. 603-2; Blaeldmrn v. Fitzgerald, 130 Ala. 584. Knox, Acker & Blackmon, contra. An attorney lias’ a lien upon the1 money recovered’ by his client, for his bill of costs; if the money comes to his hands, he may retainpto the amount of his bill. T-Tei may stop it in transitu, if he can lay hold on it. If lie apply to the court, they will prevent its being páid over till his demand is satisfied. — Ward' r. Lee, 13 Wend. N. Y. 44. ' The fact that the effort of appellees is to fasten a lien on the moneys collected, as distinguished from the original decree, is not material, for the reason that it, has been expressly decided in this State that an'at.-’ tofoey lias a lien on the1 proceeds of the decree as well as the decree itself, for the collection'of’his fee. — Jack-, son r. Olopton, 66' Ala. 29. ' . . Tin1: proper remedy for the enforcement of the lien and the ascertainment of the fee is by petition in the cause and in the court where the fund was collected. Hit/ley v. White, 102 Ala. 605. ’’Where the equities of the parties are clear, the court; will not be-deterred from the enforcement of the lien, eicku though, under pervious orders of the' court, the property may have been turned over to one or the other, of ’the parties. — Thornton v. ’Highland Av. A . Belt R. R\ Co., 94 Ala. 358; Weaver v. Cooper, 73 Ala. 318. [MAJORITY — TYSON, J.] 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 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 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. /The decree appealed from must ,be reversed, and a decree will be.here entered dissolving the injunction and dismissing the petition. Reversed and rendered.