141 So. 329 | Miss. | 1932
M.L. Abernethy died intestate on January 25, 1927. Appellee W.E. Savage was appointed administrator of the estate, which was found to be insolvent, there being but little, if any, property unincumbered and available as general assets, except two policies of insurance on the life of the decedent. These policies were issued by the same insurance company and were in the sum of five thousand dollars each. The insurance company denied liability, and refused to pay any part of either of said policies, and it became necessary for the administrator to *794 institute suit and to prosecute the same through the federal courts. The administrator was without funds to employ attorneys for this purpose by the payment of a cash fee, and was therefore obliged to contract for the service on a contingent basis. The administrator, with the approval of the chancellor, employed appellees Stovall Stovall as attorneys to prosecute the action, with the agreement that the attorneys would be paid for their services contingent upon recovery, and at such a percentage of the total amount collected as should be fixed by the chancery court, if and when the recovery should be accomplished.
The suit was duly and successfully prosecuted by the attorneys, and the judgment obtained by them in the trial court was affirmed by the federal circuit court of appeals. Mutual Life Ins. Co. v. Savage (C.C.A.),
In the order of the chancery court allowing the attorneys one-half of the funds for their services, it was directed that the administrator pay the fee proportionately out of the five thousand dollars of the fund exempt by law to the heirs of the decedent and out of the remainder above five thousand dollars. But, as already mentioned, the administrator paid the attorneys in one check drawn on the entire funds as then on deposit as aforesaid. The heirs at law were dissatisfied with the order that a proportionate part of the fee should be charged against the exempt part of the insurance money, and appealed to this court, where it was held in Abernethy v. Savage,
The dismissal without prejudice as concerns the administrator was correct, because the bill was not framed so as to present the issues as to which the court made the reservation of dismissal without prejudice, and, as to the issues actually tendered by the bill, the decree is correct on the facts.
The law in this state has long been settled that an attorney has a prime and paramount lien on the funds which his services as an attorney has produced for his client, and that this lien applies alike to exempt as well as nonexempt funds. This lien applies so long as the attorney has the funds in his possession and is superior to any other claim. Halsell v. Turner,
Affirmed.