27 S.E. 492 | Va. | 1897
delivered the opinion of the court.
John Howard and the firm of Marshall & Fisher, in Decem
In January, 1888, the First National Bank of Charleston, S. C., by its counsel, John M. Glenn, filed its petition, stating that it was a creditor of the defendant company, asking that it might be made a party in the suit, and placed upon an equal footing with the other creditors of the same class with itself. Its claim was allowed, and it has received several installments upon its debts ; and by a decree of April, 1895, the court directed the further sum of $1,228.92 to be paid to it or its counsel, John M. Glenn. Thereupon John Howard filed his petition, in which he stated in detail the facts a brief summary of which have been given, and he asked that the court forbid the payment under the decree just recited until his rights could be inquired into, and just compensation be decreed
To this petition the First National Bank of Charleston filed its answer, and the cause coming on to be heard upon the petition, the answer, arid a statement of John Howard filed by consent, to be read as his deposition, the court dissolved the injunction, and dismissed the petition. From that decree an appeal was allowed by one of the judges of this court.
We are of opinion that the petition should not have been dismissed. It is true that the First National Bank of Charleston was represented by counsel, John M. Gflenn, who filed its petition, as above stated, in 1888. The bank came into a suit in which, as the fruits of arduous and protracted litigation, a fund had been created, in which, as a creditor, it had a right to participate. The bank, of course, had a right to select its own counsel, but the only service rendered by that counsel was to prove a demand which could never have been the subject of serious controversy. The duty devolving upon counsel in filing the petition of the bank, and in establishing its position as a creditor of the National Express & Transportation Company, was of the simplest character. The service which required the high order of professional skill had already been rendered in the creation of the fund. Its distribution was free from difficulty. When, therefore, the Bank of Charleston came into the cause by petition, it not only found a fund ready for distribution, but it found its right protected against the statute of limitations, which would have otherwise been fatal, by the labor of those who had filed the original bill, and conducted the litigation down to that time. In common fairness, it ought to be required to pay its just proportion of the compensation to which those who rendered to it these important services are entitled. We think the petitioner, J ohn Howard, was entitled to an order of reference to a commissioner to inquire and report what, under
For the foregoing reasons, we are of opinion that the decree of the circuit court of Henrico county should be reversed.