Smith v. Goode

[1.] If one of the attorneys for the plaintiff in judgment collects the judgment, the others may, by motion against him, enforce their liens on the money for their fees. [2.] One of several of the attorneys for plaintiffs in a judgment, collected money on the judgment, and was ruled by the other attorneys for so much of it a3 would pay their fees. He was properly served with the rule. Two of the plaintiffs in the judgment came m and defended the rule in his place. They appeared by another attorney, and he urged against the motion, amongst other things, that his clients had not had sufficient notice of the motion. He* did not say he was not ready, did not ask for time, or suggest anything to call for delay. The Court overruled the objection. Meld, That the Court did right. J3.] He then requested that the ease might be tried by a jury. Heldy That this request ought to have been granted.

Rule, in Upson Superior Court. Decision by Judge Cabaniss, at May Term, 1859. The foregoing cases, all depending upon the same or simiSar facts, and the same decision being made in each, by the Court below, were heard together in the Supreme Court. The following rule was taken out against James M. Smith, <one of the plaintiffs in error, viz.: James S. Walker, Nathaniel F. ^ Walker, Jr, an'd Daniel Grant, Trustee for Frances C. Coleman, vs. Nathaniel F. Walker, Sen’r, ex’or of Allen M. Walker, dec’d, and Nathaniel F. Walker, individually. “ It appearing to the Court that the defendant, Nathaniel F. Walker, executor of Allen M. Walker, deceased, has paid over to James M. Smith, Esquire, one of the complainants' solicitors, a considerable sum of money, in part payment of the award made in the above stated case, and that the same is now in the hands of said Smith, as solicitor aforesaid; and Thomas W. Goode, also one of the solicitors and counsel of complainants, representing to the Court that he has a lien on said sum in said Smith’s hands, for counsel and solicitor’s fees due to him in said case by said complainants, to wit, the sum of two thousand dollars. Now, therefore, on motion of said Thomas W. Goode, it is ordered that said James M. Smith do pay over to said Goode, out of said fund, the amount of counsel and solicitor’s fees to which he is entitled as aforesaid, or show cause to the contrary to-morrow morning, and that said Smith be served with a copy of this rule.” Bill for discovery, ' account and relief; ► and submission to arbitrament and award thereon. To this rule Smith, the respondent, answered as follows: “And now comes the respondent to the within rule nisi, and for answer to the same, says, that he now has in his hands, and undisposed of, the sum of $8,776 46, collected by him from Nathaniel F. Walker, defendant in the case named in the within rule nisi, that this respondent claims a lien on said fund for services rendered as one of the solicitors in said case, for the sum of $2,500, and pra}rs that the same be allowed and adjudged to him by this honorable Court, and respondent having fully answered, &c. “J. M. SMITH.” The above rule coming on to be heard, James S. Walker and Nathaniel F. Walker, Jr., by their counsel, objected to, and protested against the hearing and trial thereof, upon the grounds, that the fund, admitted to be in the hands of said respondent, was a joint fund, and belonged to James S. Walker, Nathaniel F. Walker, Jr., and Frances C. Coleman, a feme covert, and that the Court has not jurisdiction in this summary manner. And further, that said James S. and Nathaniel F. Walker, Jr., and Daniel Grant, trustee for Mrs. Coleman, had not been served with said rule, or any process by which they were made parties to this proceeding. And further, that said Grant was not present. It was admitted and stated by respondent, Smith, that sometime before the sitting of this Term of the Court, he notified Grant that said fund was in hand, and that proceedings would be had, to dispose of said fund at this Term of the Court, and that Grant said that he would take some proceeding to have said money disposed of at this Term of the Court. It was further stated, that said Grant was absent front the State on business. N. M. Harris, Esq., also stated that he was present to represent James S. Walker and Nathaniel F. Walker, Jr., and had a power of attorney from J. S. Walker for that purpose, authorizing him to employ counsel. The Court held and decided that the solicitors of the complainants, in the original suit in equity, had. a lien on the fund in Court for their fees, and that the Court had jurisdiction so far as to award them their fees, and direct the same to be paid out of the same; and as the parties in interest all had notice that the fund in Court would be disposed of at this Term of the Court, the Court ordered the cause to proceed. To which ruling and decision respondent excepted. James M. Smith, Esq., testified that the fund in his hands was collected by him of Nathaniel F. Walker, Sen., in part of a judgment or decree in Upson Superior Court, wherein James S. Walker, Nathaniel F. Walker, Jr., and Frances C. Coleman, wife of Edmund Coleman, by her trustee, Daniel Grant, were complainants, and Nathaniel F. Walker, Sen., executor of Allen Walker, deceased, was defendant. That the recovery in said case was ninety or one hundred thousand dollars, including the payments made after the suit was commenced, and before the award, and interest thereon to the date of the award. That Thomas W. Goode, Absalom H. Chappell, John J. Floyd, Barnard Hill, James M. Smith, (the witness and respondent,,) William G. Horsley, and Thomas Beall, were the solicitors for complainants. That Judge Worhill was also employed and engaged in the case for complainants at the commencement, but went out on being elected Judge. Thomas W. Goode rendered valuable services in the case — he drafted and filed the original bill — was one of the original counsel, and was active and efficient in preparing the case and arguing it before the Court, up to the time of his becoming infirm, which was towards the close of the case. Can’t enumerate the services he did render; thinks the fee he charges, $2,000, is a reasonable one. Barnard Hill, O. C. Gibson, James W. Greene, John J. Floyd, and Absalom H. Chappell, Esquires, all sworn and testified, in ¿ubstance, as Smith had testified, except that Hill declined to give an opinion as to the value of the services rendered. They testified farther, on the cross-examination, that from ten to fiften per cent, on the amount recovered was a fair allowance or charge for counsel fees in a case of this kind. Here movant closed, and counsel for the Walkers moved to be allowed to tender an issue as to the value of services rendered, and that the case be submitted to a jury. The Court held and decided that if he had any issue of fact to make, he might go to a jury if he would tender an issue; as to the rendition of the services, the Court would direct it to be tried by a jury. Counsel replied that he had no such issue to make; he could not deny that movant had rendered services. The Court held that the question as to the lien of counsel for fees upon the fund in Court, and the amount of fees to be allowed, was for the Court, and the intervention of a jury was not necessary to enable the Court to decide it. To which ruling and decision counsel for respondent excepted. Respondents then swore Amos W. Hammond, Esquire who testified that he knew nothing about the case; but after being informed by counsel of the amount involved, number of counsel, and the time the case was pending, he thought that twelve and a half, or fifteen per cent, on the recovery was a reasonable charge for counsel fees ; thought that counsel who pepared a case was entitled to as large a fee as those who conducted the case in Court. The testimony being closed, the Court made therule absolute, and passed the following order. (After reciting the case, the issuing of the rule, the answer, &c.) “It having been made to appear to the Court that the said Thomas W. Goode was one of the complainants’ counsel and solicitors in said case, and rendered professional services as such therein, and and that said services were of the value of two thousand dollars, the amount claimed by him for his services heretofore and hereafter to be rendered by him to the close of the case: And no cause having been shown to the contrary, either by the said James M. Smith, or by the complainants, who had, as it appeared to the Court, notice of the purpose of the said Thomas W. Goode, and other solicitors of the complainants, to enforce their lien on said fund, as counsel and solicitor’s fees, by rule, at this Term of the Court. It is, therefore, ordered by the Court, that the said rule nisi be and the same is hereby made absolute, and that the said James M. Smith pay over to the said Thomas W. Goode the sum of two thousand dollars, out of the money now in his hands, received by him as aforesaid, if the fund in his hands be sufficient; if not, then ratably with the fees of other counsel and solicitors adjudged them at this Term of the Court. And that the said Thomas W. Goode execute and deliver to him a receipt for the same, and that this be a discharge to him of liability to that extent to said complainants.” To which order and decision counsel for respondents (for the Walkers) excepted. Similar rules were taken out by Thomas Beall, William G. Horsley, John J. Floyd, and Absalom H. Chappell, Esquires, respectively. To which the respondents answered, and testimony submitted in support of the respective claims. The amount claimed by, and ordered and adjudged to be paid to Thomas Beall, Esquire, out of the fund in the hands of James M. Smith, Esquire, was $1,200. To John J. Floyd, Esquire, $2,000. To Absalom H. Chappell, Esquire, $1,500. To William G. Horseley, $1,200. To all which counsel for the Walkers excepted.