151 P.2d 797 | Okla. | 1944
On June 30, 1942, this court rendered a decision herein (
It is alleged in the application that before the journal entry of judgment *360 was agreed upon or could be entered pursuant to said opinion, and some time after the expiration of the 15 days for filing a petition for rehearing, Dudley discussed with the attorney for the Tax Commission the question of filing an application for attorney fees in this proceeding, and the said attorney advised Dudley that no distribution of the funds would be made to the counties until formal judgment had been entered, but that through mistake the accounting department of the Tax Commission distributed the funds to the counties without the knowledge of the attorney for the Tax Commission. No journal entry of judgment has yet been filed. It is alleged in said application that other funds are coming into the hands of the Tax Commission apportionable to the counties on the same basis as said sum of $46,562.74 was apportionable, and that the attorney fee should be paid out of such funds. It is also alleged in said application that on May 29, 1941, a contract was entered into between said attorneys and Harmon county, whereby the attorneys agreed to represent the county on a contingent fee basis of 25 per cent of the amount recovered.
The Tax Commission has filed a response admitting that the portion of the funds belonging to the counties was inadvertently transferred to the counties, and admitting that current funds are being collected from excise taxes on gasoline apportionable to the several counties. The petitioning attorneys have filed a brief herein in support of their application, and at the request of this court the Attorney General has filed an answer brief on behalf of the 77 counties of the state.
It is well settled that ordinarily "a court in the exercise of equitable jurisdiction, will, in its discretion, order an allowance of counsel fees, or, as it is sometimes said, allow costs as between solicitor and client, to a complainant (and sometimes directly to the attorney) who at his own expense has maintained a successful suit for the preservation, protection, or increase of a common fund, or of common property, or who has created at his own expense, or brought into court, a fund in which others may share with him." 49 A. L. R. 1141, at 1150, annotation. See, also, Fitzgerald v. Bass,
We believe it is clear that there can be no valid implied contract, or a contract or agency or representation by acquiescence, ratification or estoppel, binding upon a municipality where there can be no valid express contract. Dungan v. Independent School Dist.,
The cases relied upon by the petitioners (O'Hare v. Oakland County, 6th Cir.,
Since what we have said is decisive of the case, as to the 76 counties, we need not pass upon the effect of the premature distribution of the fund. The petitioning attorneys should seek redress against Harmon county in a proper adversary proceeding in the event they are unable to collect their fee without suit. We decline to pass upon the application as against Harmon county.
It follows that the application now under consideration must be, and is hereby, denied.
CORN, C.J., GIBSON, V.C.J., and RILEY, OSBORN, BAYLESS, and DAVISON, JJ., concur.