266 P. 703 | Wash. | 1928
The trial court sustained a challenge to the sufficiency of the evidence of appellant in his action for attorney's fees against the respondent corporation *491 and another, against whom no relief was asked.
The facts are contained in the findings of the trial court here set forth:
While the trial court made no finding as to the value of the attorney's services in the case referred to, it announced at the conclusion of the testimony that it would be willing to find that thirty per cent of the recovery allowed by this court would be a reasonable fee. Upon these findings the court concluded that appellant was not entitled to recover, and so adjudged.
On appeal, appellant makes five assignments of error which are properly condensed in the following contentions:
(1) That the respondent corporation was the real party in interest as plaintiff in the action of Tefft v. Schaefer,
(2) Appellant was neither a party nor in privity to any party to that action and is not bound thereby.
(3) That the judgment in the first case was reversed *493 and cannot, after such reversal, be a bar to this action.
(4) That the grounds of the decision of this court in the former case on appeal were erroneous.
Very elaborate and capable arguments are made by appellant to sustain his contentions.
[1] Most of the argument cannot be now considered for the very good reason that it was held in that former case,
"Plaintiff's attorney of record, claiming an interest in the subject matter of the action, but prosecuting the case in behalf of his client, is bound by the judgment." 34 C.J. 1006, § 1426.
"A judgment is conclusive and binding, not only upon the parties to the action in which it was rendered, but also upon persons who are in privity with them in respect to the subject matter of the litigation, and this rule is applicable both to actions at law and suits in equity." 34 C.J. 1009, § 1431.
[2, 3] Although appellant contends that the matter of attorney's fees was not properly within the issues of that case and could not be decided therein; that such issue was not raised by the pleadings and no proof or evidence was taken as to the amount of services rendered or the reasonable value thereof, so that the judgment *494 in that action could not be a bar to recovery herein; we must presume that the attorney's fee allowed by the trial court in the former case was allowed either upon evidence within the issues in the case, or upon submission by counsel of the reasonableness of any attorney's fees to the court, as is the common practice, and that appellant cannot now be heard to say to the contrary. In that former action, appellant's client was awarded a recovery of about $17,000 in money and some other relief, upon which money recovery the trial court allowed the attorney's fee of $1,500.
This court on appeal said:
"Objection is made also to the allowance of attorney's fees in the sum of $1,500 to appellant Tefft. It was the theory of appellant that, having been partially successful in the suit, and having obtained a refund to the corporation of a fund from which all stockholders should share, reimbursement should be made to him. The basis upon which this rule rests is that, where there are a large number of stockholders upon whose behalf and for whose benefit the suit is waged, the one who accepts the burden and thereby brings to the treasury a fund for the rest, shall not bear the expense alone. But we think the facts in the present case hardly bring it within the rule. There are but two other stockholders, both of them protesting against this suit and ratifying and approving all the previous acts of the trustees. This suit brings no fund to them for their benefit, nor can it be said that either of them is benefited by the outcome of the action. The suit being brought by Tefft for his own benefit, the only costs properly chargeable are statutory. Boothe v. SummitCoal Mining Co.,
While appellant argues that the decision in that case was erroneous and based upon a case which was different in its facts that decision, right or wrong, nevertheless made the law of this case. We there distinctly held that, where there were but two other stockholders, both of whom were protesting against the suit and *495 ratifying and approving all of the previous acts of the trustees, the suit would bring no fund to them for their benefit, and neither of them could be said to be benefited by the outcome; that the suit was brought by Tefft; was for his own benefit and the only costs properly chargeable would be statutory.
While it is insisted that the Boothe case cited therein was different in its facts, it does not so appear. That was a case which, as reported on the first appeal,
In that case the opinion cited and quoted Trustees v.Greenough,
"`Where one of many parties having a common interest in a trust fund at his own expense takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts. . . .'" *496
Upon that basis such attorney's fee against the corporation was allowed in the case cited in 145 Fed. 103, and so also, in the Boothe case in this court, it was approved as a principle that where one of several parties similarly situated prosecuted such a suit to a favorable determination and the benefit goes to the corporation, he will be entitled to recover a reasonable attorney's fee as a part of his necessary disbursements. But it was also said that
"Such allowances are rarely, if ever, made unless it is made to appear that some advantage obtained for the corporation as distinguished from the interest of the individual stockholder."
Hence, in the appeal in the Tefft case, supra, it was held that Tefft should not recover attorney's fees against the corporation upon the facts there existing.
We are satisfied that the decision in the Tefft case,supra, was correct upon the facts involved, but that at any rate it had established the law, and is stare decisis of the case of appellant here.
[4] The contention of appellant that the judgment in that case cannot be a bar because it was reversed is untenable. That judgment was not reversed. Judgment was entered in the court below after the decision on appeal in accordance with the decision, became final and has never been reversed. It was as binding as to appellant as it was as to his client, the plaintiff in that case.
Although appellant certainly earned a substantial attorney's fee from someone, under our decisions it was not the corporation. Further discussion is useless.
We find nothing justifying a reversal of the judgment, and it is accordingly affirmed.
MACKINTOSH, C.J., FULLERTON, MAIN, and ASKREN, JJ., concur. *497