108 Va. 307 | Va. | 1908
delivered the opinion of the court.
The original hill in this case was filed by certain supply lien creditors of the William R. Trigg Company, shipbuilders, suing on behalf of themselves and all other creditors similarly situated, alleging the insolvency of the defendant company, and
The chancery court decided in favor of the Bucyrus Company, so that under that decree it took the entire fund in controversy, to-wit: $14,266.67. The creditors affected by this decision desiring to take an appeal from it, applied to the chancellor, who entered an order as follows:
Accordingly, a petition for an appeal was prepared on behalf of the Trigg Company and others, and presented to this court. The petition is signed by Bickford & Stuart, Whitehurst & Hughes, J. Jordan Leake, as attorney for the Trigg Company, and Lilburn Myers, receiver; by A. W. Patterson, George Bryan, and T. C. Gordon. Bickford & Stuart seem to have represented the greater number of clients; and the certificate of error required in our practice was signed by William O. Stuart, of that firm.
An appeal was allowed, and, the rules of court permitting only two counsel to argue upon each side, the case was presented in this court by Stuart and Bryan. The decree of the chancery court was reversed, the claim of the Bucyrus Company was rejected, and the cause - was remanded for further proceedings to be had in accordance with the views expressed in the opinion of this court.
Thereupon Stuart, Bryan and Patterson filed their petition in which they claim, substantially, that it was through their services as attorneys that the claim of the Bucyrus Company was defeated, and the sum for which that company had obtained the decree in the chancery court “was preserved, not only to the clients of the said Bickford & Stuart, but to all of the creditors of the said William R. Trigg Company, subject to proper priorities, which said sum so preserved was, therefore, in fact ‘created’ for the benefit of the said creditors by the work and labor of your said petitioners, and which sum, except for the said appeal, would have been totally lost to them.”
The commissioner filed a report in which he allowed the petitioners a fee amounting to 33 1-3 per cent, upon the sum of $14,266.67. Exceptions were taken to that report by a number of creditors, who state that they had been continuously represented by counsel, and that it was upon the .motion of the receiver that he was authorized and directed to take the necessary steps to procure an appeal from the decree complained of, at the expense of the fund, and that the amount of the fee, as ascertained by the report of the commissioner is excessive, and other grounds of exception which need not be noticed.
This court has had frequent occasion to. indicate its views upon the general subject of devoting funds under its control to the payment of services rendered by attorneys.
In Stoneburner v. Motley, 95 Va. 784, 30 S. E. 364, it was said: “There are cases which justify courts in making allowance for fees to counsel to be paid out of the funds under their control, a power capable of. great abuse and one which should be exercised with the most jealous caution and regard to the rights of the litigants. In most cases, it is better to leave those concerned to contract for the services rendered or received. But, while this is true, it is also true that, where parties to a suit, unrepresented by counsel, reap the benefit of services rendered in the progress of a cause, it is right and proper that those who receive the benefit, should be required to make just compensation for it. But we repeat, it is a power which is very capable of being abused and should, therefore, be cautiously exercised, lest thereby the administration of justice be brought into reproach.”
The last utterance of this court upon the subject was in
To that statement of the law we may add, that a fee would properly be allowed where the services of counsel had ‘preserved' a fund to be shared with those in like interest and unrepresented by counsel; but this court has not as yet required a party represented in a suit by counsel to contribute to the payment of the fees of counsel other than his own engaged in the suit. See also Roller v. Paul, 106 Va. 214, 55 S. E. 558.
There is nothing in the case of Howard v. First Nat’l Bank, 2 Va. Dec. 513, 27 S. E. 492, inconsistent with the views here expressed. The .opinion in that case states: “It is true that the First National Bank of Charleston was represented by counsel, John M. Glenn, 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 hank, 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,
Coming to the facts of this case, we find that the Trigg Company and the receiver were represented by counsel; that after the adverse decision in the chancery court, they united with petitioning counsel in securing an order from the court, directing the receiver to appeal from the decree complained of, at the expense of the fund in'the cause. That appeal was taken. The gentlemen named were at all times counsel for the appellants, were prepared to argue the case in this court, and that they did not do so was the result of an arrangement entered into among the several attorneys in the case.
We cannot enter into a discussion or comparison of the relative merits of counsel practicing at this bar. It would be an invidious task were we to undertake it. There is no standard by which we could reach a just decision. They are, so far as we know, all quite capable of aiding the court in arriving at a correct conclusion. The result of the conference among themselves might as well have resulted in the selection of Messrs. Leake and Gordon to argue the case at the bar of this court, as the learned gentlemen who so ably and successfully presented it. But as the case appears to us, it is one in which every party in interest was .represented by counsel of his own selection, who must look to their respective clients for compensation, and it is not a case in which the court should appropriate funds as fees to counsel, upon the ground that they had created, discovered or preserved the fund under its control.
Counsel argued earnestly that the appeal to this court was the institution of a new suit. We cannot agree with that view, but shall not discuss it, because even though it were regarded
We are of opinion that there is no error in the decree complained of and that it should be affirmed.
Affirmed.