103 Ark. 513 | Ark. | 1912
(after stating the facts). On the question of the employment of the appellees, we think the case is controlled by the principles announced in the case of Fenno v. English, 22 Ark. 170. Fenno had employed English to defend a suit for him. English was elected Chief Justice, and, upon assuming the duties of his office, made an arrangement with S. W. Williams to attend to his unfinished business for him. Pursuant to this agreement, Williams attended to Fenno’s case until it was decided. English brought suit against Fenno for his fee, and recovered judgment in the circuit court; on appeal to the Supreme Court the judgment was affirmed. The court said:
“Under the decision above referred to, we hold that Fenno could not avail himself of the services of the substitute until he succeeded in the cause, and then allege that his contract was for the services of English only; and, further, if Fenno was dissatisfied with the services under the advice and direction of English, he should have paid for the services already rendered, and have made known his dissatisfaction.”
It is true that C. D. Boynton testified that, soon after he learned that Brown had been employed as an attorney in the case, he told Driver that he knew nothing about Brown, and wanted him, Driver, to have the active personal charge of the case, but his testimony is contradicted by Driver and the other facts and circumstances in the case. Boynton himself admits that Culbertson had been interested in the lands, and had had charge of them prior to C. O. Boynton’s death; that Culbertson had had charge of all litigation concerning the land and had engaged attorneys to conduct the litigation.
He states that, after his father’s death, by direction of the other heirs, he assumed control of the land, but he admits that Culbertson continued to be his agent. Driver testified in positive terms that Brown was employed in the case by himself after consultation with Culbertson; that it was deemed best to employ Brown because of his familiarity with the title to the lands which he had acquired by prior investigation. This is in direct conflict with the testimony of Boynton to the effect that Driver had told him that Brown was in the case only upon exchange of work.
The undisputed evidence shows that Brown prepared the pleadings in the case, took the depositions and conducted the case until it was decided adversely to the Boyntons in the chancery court. Afterwards, when Mr. Coleman was employed to prepare and file the bill of review, Brown continued in the case and assisted him to some extent. These facts were known to Boynton, and to Culbertson, his agent. Boynton admits that Brown told him he had charge of the litigation, and he did not express any surprise or notify him that he expected Mr. Driver to take charge of the case.
The statement of Boynton that Driver told him that Brown was only in the case upon exchange of work with him was made after Driver had testified in the case. It is true that Driver was not recalled as a witness, and thus did not in spe'cific terms deny this testimony of Boynton, but the whole tenor of his testimony is contradictory of it, and is inconsistent with its truth. While it is true that attorneys often assist each other, and make an exchange of work in trivial matters, it is not in accord with our common experience in such matters that they make exchange of cases of such magnitude and importance. Boynton admits that Brown told him that he had charge of the litigation, not merely that he was assisting Driver. Boynton says that he did not say anything to Brown because he did not know him. It was his duty then, or as soon thereafter as he made inquiries concerning Brown, to have notified him or have caused him to be notified that his services were no longer required. He could not accept his services, knowing that Brown considered himself in charge of the case, and, after the services were rendered and the litigation ended, repudiate the employment, and refuse to pay Brown a reasonable compensation for his services.
The evidence shows that the amount allowed by the chancellor was a réasonable fee for the services rendered by Brown, provided he was not negligent in the conduct of the litigation.
In the original suit of the Boynton heirs against the Chicago Mill & Lumber Company, both parties deraigned title from the Citizens’ Bank of Louisiana — the Boyntons by virtue of a conveyance from the Citizens’ Bank to Culbertson and from Culbertson to Boynton; and the Lumber Company through mesne conveyances from the Fowlkes heirs. To support its claim of title, the Chicago Mill & Lumber Company introduced a decree in the case of Fowlkes’ heirs against the Citizens’ Bank, of Louisiana, in which the title to the land was divested out of the Citizens’ Bank and invested in the Fowlkes heirs. This decree purported to have been rendered prior to the conveyance by the bank to Culbertson, and was a basis for the chancellor’s finding against the Boynton heirs and in favor of the Chicago Mill & Lumber' Company. After the decree was rendered, and before the bill of review was filed, it was discovered that the decree in the case of the Fowlkes heirs against the Citizens’ Bank had been rendered in vacation, and was therefore void.
In the case of Boynton v. Chicago Mill & Lumber Company, 84 Ark. 203, the court held that there was no negligence in not finding this out sooner, and that it was sufficient to support a bill of review; in short, the court held that the Boynton heirs and their attorneys were not negligent in accepting as true the copy of the decree in the case of Fowlkes’ heirs against the Citizens’ Bank which was introduced in evidence by the Chicago Mill & Lumber Company. This court having held in that case that counsel were not negligent in not discovering that the Fowlkes’ decree was rendered in vacation, the finding is conclusive in the present case.
Again, it is contended by counsel for appellant that appellees were negligent in not asking the chancery court to continue the original case of the Boynton heirs against the Chicago Mill & Lumber Company until the suit in the Federal court had been disposed of. This was not negligence on their part. In the first place, the pendency of the suit in the Federal court against Haggart and McMasters was not a legal ground for a continuance. In the second place, appellees did not then know that the court would hold, that the decree in the Federal court pending an appeal would be held to be res judicata in the case in the chancery court. This was a matter for judicial determination. It can not be said that counsel was negligent in not knowing in advance what the decision of the court would be.
The plea of the statute of limitations is not well taken. The testimony shows that appellees continued as attorneys for appellants until the case was finally determined in the Supreme Court on the bill of review. The opinion in that case was delivered October 28, 1907, and this suit was instituted August 20, 1908. As was held in the case of Fenno v. English, supra, the statute of limitations did not begin to run until the case was finally decided, and the service thereby terminated.
The decree will be affirmed.
