151 S.W.2d 949 | Tex. App. | 1941
This is a garnishment case in which the garnishee was discharged at the request of plaintiff in garnishment, without a trial, but not upon the garnishee’s answer. The sole question on appeal is whether the allowance of $500 as attorney’s fees, which were taxed as costs, should be reversed.
Appellant, who was the holder of a judgment against Phillip Stillman for a sum, inclusive of accumulated interest, in excess of $11,000, applied for a writ of garnishment against appellee. Appellee filed a sworn answer stating that he was not indebted to Phillip Stillman and had none of his effects, and asked to be discharged upon said answer, and stated that he had employed an attorney to prepare and file such answer and had agreed to pay said attorney $50 for his services, and that said sum was reasonable for such services. Appellant controverted appellee’s answer, and alleged that he believed appellee was indebted to Phillip Stillman for attorney’s fees incurred in the case of Druesedow v. Humble Oil & Refining Company and in the case of Settegast v. Kalb, and in connection therewith had effects belonging to Phillip Stillman, and if not that appellee had made an assignment or transfer thereof to a third person in order to defraud appellant, and'that said assignment or transfer was void, and that appellee owed Phillip Stillman the indebtedness and effects aforesaid, notwithstanding said purported transfer. Thereupon appellee moved the court to direct the formation of issues under R.S.Art. 4095, between the plaintiff in garnishment and garnishee which motion the court granted. And the parties did file, pursuant - to the court’s order, pleadings forming issues, and in the pleading filed by appellee he asked for $500 as attorney’s fees. Thereafter the court passed upon exceptions urged by appellee, as garnishee, to the pleading filed by appellant, as plaintiff in garnishment. Thereafter, on December 19, 1940, as appears from the judgment, the parties announced ready for trial, and waived a jury, and the plaintiff in garnishment thereupon announced that he had agreed to entering a judgment “discharging. the Garnishee without further contest thereon,, and it appearing to the Court that the only issue to be determined before such judgment be entered is the issue of what is a reasonable compensation to the Garnishee to be’taxed against' Plaintiff, and, the parties haying announced ready for, trial, on .that issue, the court having heard the evidence and the arguments of counsel on that issue. * * * ” And the court then awarded $500 as attorney’s fees for appellee.
Appellant here urges three propositions as grounds for reversal of the trial court’s judgment.
First. That appellee had pleaded under oath that the compensation which he had agreed to pay his attorney for filing his answer was $50 and that appellee was concluded by said pleading as judicial admissions from seeking to recover higher attorney’s fees.
Second. That appellee was estopped by his pleadings to the effect that he had agr'eed to pay as attorney’s fees the sum of $50 from recovering more than $50 as attorney’s fees.
Third. That the award of $500 as attorney’s fees, upon the discharge of ap-pellee from the case without a trial was unreasonable and excessive.
There is no merit in appellant’s propositions 1 and 2. Appellee’s allegations of a contract to pay $50 as attorney’s fees was contained in his formal statutory answer, wherein he asked to be discharged upon said answer. Appellant contested this answer, and undertook to hold appellee for 'the amount of the judgment which Phillip Stillman owed him, notwithstanding appellee’s answer that he had no effects of Phillip Stillman, and that Phillip Still-man owed him nothing. In his amended pleading, filed after his sworn answer had been contested by appellant, appellee alleged that the compensation of $50 which was asked for before it had appeared that his answer would be contested was inadequate, and that the reasonable attorney’s fees had become $500.
It is manifest that, in view of appellee’s amended pleading in which he asked for $500 attorney’s fees, he cannot be concluded by his superseded pleadings in which he asked fqr but $50 as attorney’s fees; the authorities cited by appellant do not deal with pleadings which have been superseded and become functus officio.
The trial court, in determining what is a reasonable attorney’s fee, has much discretion, and the trial court’s determination of what is a reasonable atr torney’s fee will not be disturbed unless it appears that this discretion has been abused. Tex.Jur., Vol. 5, p. 539, 541; Japhet v. Pullen, Tex.Civ.App., 153 S.W.
Affirmed.