60 W. Va. 600 | W. Va. | 1906
B. Kelner, holding a judgment lien of $81.60 against the
“This day L. D. Isbell and T. J. Bryan, attorneys for the plaintiff'and the other creditors of said John B. Laidley, deceased, appeared and asked the Court to make an allowance to them for their services rendered in this cause, and the Court being familiar with the facts and the value of the services rendered by said attorneys, is of opinion that they are entitled to compensation for said services, and doth hereby allow the sum of $1,800.00 to be paid to said attorneys out of any funds that may come into the hands of said Laidley’s administrator, or any other person or corporation that may have, or may hereafter have, funds in their hands belonging to the estate of the said John B. Laidley, deceased, and this shall be and constitute a chargeable lien upon any of the funds aforesaid.”
Afterwards in December, 1903, the said Bryan and Isbell and the said O. J. Wilkinson respectively filed their several petitions representing that the said Cowden, administrator of the estate of said Laidley, had received from Huntington
At the September term of this Court, 1905, the appellant having failed to print, the record as provided bjr section 18, chapter 135, Code 1906, Annotated, and the rules of the court, the appellees, Isbell and Bryan, by their counsel moved the court to dismiss the said appeal which motion was docketed and continued to the Court at Charleston, November 21, 1905, at which time and place the motion was heard and the appeal dismissed, and, upon such dismissal, on the applica
The order of January 7, 1905, must be affirmed only as to the direction of the payment to Wilkinson the sum of $200.00 on account of the allowance made to him by the order of September, 1900.
The order of July 21, 1903, however, stands upon a very different footing from that of September 21, 1900. -Without any pleading whatever of any kind, making no parties, serving no notice on any one interested as it appears from the order making the allowance “L. D. Isbell and T. J. Bryan, attorneys of John B. Laidley, deceased, appeared and asked the court to make an allowance to them for their services rendered in this cause;” and upon this the court proceeded to make to them the allowance of $1800,to be paid out of the estate of a decedent against which they were prosecuting a suit to enforce judgment liens. It cannot be possible that services were rendered by them in this suit to authorize such allowance. While it appears from the order that the allowance was “for services rendered in this cause,” the record does
The order of July 21, 1903, being wholly without pleadings to support it is a nullity, absolutely void, and being the only basis upon which the order of January 7, 1905, could
The order of, January Y, 1905, in so far as it directs the-payment of $200 to Commissioner Wilkinson, is affirmed;, and as to the provision therein for the payment of $200 each to Attorneys Bryan and Isbell the same is reversed and the cause remanded to the circuit court of Cabell county for further proceedings to be had therein according to the principles governing courts of equity.
Affirmed in part.' Reversed m, part.