74 Miss. 381 | Miss. | 1896
delivered the opinion of the court.
The effort of appellants to charge the fund in the hands of the administratrix with the attorneys’ fees of Mr. J. E. Rives, in his own right, and as surviving partner of the firm of Rives & Rives, cannot be successfully maintained. That the services of the attorneys of the appellant creditors were valuable and important is clear, and that a reasonable fee should be paid them is not to be disputed. But shall this fee be paid out of the funds of Patty’s estate, now ready for distribution to all the creditors, or shall it be paid by those creditors who employed the Messrs. Rives, and who have been greatly benefited by the services of their attorneys ? The supposed right to charge the fund for distribution with the fees of the attorneys of a part of Patty’s creditors rests upon the fact that this fund, and all the creditors to whom it is to be distributed, .received, directly or incidentally, large benefits from the well-directed efforts of the attorneys employed by the appellant creditors, and that the fund itself should bear the expenses of the successful attorneys’ fees, although Messrs. Rives & Rives were confessedly employed by the appellant creditors, and notwithstanding the fact that the effort of their attorneys was, in the main, directed to the securing of all the benefits flowing
The attorneys, in serving those who employed them, have incidentally served all the other creditors, but those others are not thereby brought under obligation as clients to the Messrs. Rives, nor made liable to compensate those gentlemen for services rendered by virtue of employment by the appellant creditors. The relation of attorney and client is created by contract, and we are not aware of any principle of law or equity which would justify the imposition of attorneys’ fees upon litigants who have not assumed liability therefor, either because they have other counsel of their own selection, or because they have elected to employ no counsel, and take the chances of success in the courts without representation of lawyers. It appears to us that it would be a dangerous precedent for litigants, however advantageous to lawyers, if we should hold that counsel may intervene to protect the interests of persons who have not signified any desire for the services of counsel, and, upon success crowning the efforts of such counsel, impose liability upon the unwilling litigants to pay attorneys’ fees. It would seem almost as dangerous to compel litigants in a common.cause to bear the expenses of counsel fees incurred by their fellow-litigants, though without their procurement or consent, because of incidental benefits resulting from the services of the attorneys of the fighting litigants.
In Roselius v. Delachaise, 5 La. Ann., 481, a case whose essential facts bring it in the category of the case in hand, this language is employed: “ However valuable the services of the plaintiff may have been, which do not appear to be underrated by the defendant herself, yet as she did not employ him, or authorize anyone else to employ him in her suit, the present action cannot be sustained. ’ ’
The same view, in a similar case, was held in Chicago, etc., Railroad Co. v. Larned, 26 Ill., 218. To the same effect is Turner v. Myers, 23 Iowa, 391. See, also, Attorney-
Affinned.