*1 (2d) 840. W. et al. 146 v. CUNNINGHAM al. et VANHOOSER August Middle Section. January 11, 1941. by Supreme denied for Certiorari
Petition *2 Gainesboro, Vanhooser. Anderson, appellant & B. Bailey Botts, Gainesboro, Butler and M. both L. Wright, Haile, Bryant, Cookeville, Russell both of and Worth Cunning- Nashville, appellees Hartsville, Higgins, Joseph ham and others. error to
CROWNOVER, us on a writ of J. case is -before fixing judgment the solicitors’ fees *3 review the partition. a land for sale of the Tennessee, the County, Draper R. died Jackson L. intestate in personalty. and year 1935, valuable tracts land the owner of several $65,000. personalty the almost His land was worth about and realty, Vanhooser, inherited a small interest in petitioner, the County shortly a Court to and after his death she filed next kin partition, all and made his other sell his land for Most of the defendants parties heirs defendant to the suit. collateral asking petitions appearances entered and filed answers and cross their a sale of land. a bill filed, some of heirs filed Some time was after Chancery injunction staying proceed- Court and obtained County Court, ings property insisted that the title to Chancery be land sold in Court. settled Appeals superseded therein the Court of suit and orders made were and afterward dismissed. Draper a bill in the Draper Blanche and Walter
Later, Chancery against mother, Mary Gainesboro their Stafford Court at parties proceeding de- Draper, and made they alleged decedent, Draper, R. L. in which bill that the fendants, year 1881 and that and several had married their mother legal Mary Draper, were the of R. L. Stafford other children of property, be the owners of his prayed be decreed to that enjoined. in the be proceedings asked that the All the except Mary defendants Stafford filed and denied answers R. L. Draper Mary Mary that had married Stafford and denied that her Stafford and children legal were heirs of the decedent. juryA was demanded Chancery and much evidence case heard, was complainants preacher introduced and other who claimed that they ceremony. marriage witnessed the But much evidence was tending marriage introduced disprove that cere- such mony performed. was testimony days, After was heard for several jury disagreed, and a mistrial was entered.
Later this all compromised by agreement was parties. agreed Mary was and her children Stafford paid should be $20,000 the sum of out of Draper, of R. L. estate $10,000 paid of said sum to be $10,000 out of the personalty and out realty; agreed and it was further suit would be dismissed payment of said sum.
Pending proceedings injunction was permit modified so as to the parties depositions take proceedings, preacher and the of the wtnesses to one marriage ceremony were great length, examined at apparently with ascertaining view of what their testimony would be Chan- cery case. After the suit was dismissed, a reference Clerk was held in the Court case as whether the land was sus- ceptible partition, or whether it was to the interests of all the parties that the land be sold partition. reported The Clerk was not susceptible it and should be which sold, report was confirmed the Court, and a sale of the land was ordered. The land was advertised and sold in tracts and purchased by various people. Many petitions to bidding raise the many were filed and pieces of property were purchased by resold and people. Finally all the land was sold and the sales confirmed. The pur- total price chase property of all Out of this amount $10,000 Mary paid was to be Stafford her children. The court costs, taxes, inheritance fees, attorneys’ fees, receiver’s and other expenses out remainder.
The cause was then referred to Clerk proof to take what would be reasonable fees for the their *4 the cause. proof
Much was taken reference, on the reported the Clerk that the named solicitors should be $14,050, the sum of to be (1) divided as follows: & Anderson, filed who for sale for partition, (2) Butler, $7500. B. C. represented who many Cunningham of heirs, $1,625. (3) Bryant Worth L. Botts, $3,250. (4) L. M. George Haile, (5) B. Q. Milwee, The $50. was confirmed and decrees were accordingly. entered Cunningham The excepted prayed appeal decrees and which, fixed granted, but the Clerk Appeals, of was
to the Court make, appellants could not $15,000, whieli the bond at appeal perfected. appeal was not defendants in heirs, 1939, the collateral September On error, which for writ of filed the record proceedings, brief, was which it assignments errors accompanied by was of large, which the entirely too allowed insisted the fees reply have filed briefs. solicitors dismiss the writ have a motion to appellee
The following error for the reasons: application wrong court. made The
(1) appeal was The Circuit Court. have made to the for the writ of been error must be overruled ground is well made and of the motion This not have County, Courts for the reason that the Circuit Code, sec. 9169. Where jurisdiction partition cases. concurrent appeal direct to concurrent lies the courts have Appeals has Appeals, Code, 9029. section might grant have been jurisdiction to of error cases writs 9. Garrett, Tenn., W., 300 S. appealed it. Garrett v. completed record not (2) transcript was Because necessary complete transcript when filed. is have made a writ of error. Gibson’s Suits application when record (4 Ed.), 1273. sec. suggestion dim- completed upon was But in this the record nothing proposition. of the record. there is inution ITence (3) gave not parties why no reason did Because the granted prayed for in the Court. perfect appeal their made, ground well reason that of the motion is not This appeal by executing perfect did not their record shows England necessary appeal. perfect in order to bond. was any W., Young, party reason Tenn., Where appeal to file the record for writ of perfect fails he entitled -to Chancery (4 Ed.), Suits in sec. error. Gibson’s not (4) preserved a bill ex- Because evidence ceptions. necessary by a preserve exceptions not the evidence bill of
It is the evidence where suit was depositions. preserved by Such suits are tried Chancery. (4 Ed.), Court as suits in Gibson’s Suits sec. necessary. exceptions 1327. Hence a bill of was not Gibson’s Suits Chancery (4 Ed.), sec. 1213. assignments is that The substance of the Court should errors cent, only per ten allowed as solicitors’ sales of the
realty, have allowed Anderson & Anderson and that he should $1,600, Bryant joint $1,800, not B. and Botts a fee of over C. Butler anything. B. if $750, $900 not more than Haile
485 compelled The contention of the that were do solicitors is to Chancery amount work partition in both the immense cases; spared time, pains, prosecuting that in no or effort defending cases; investigating expenses these that their in prosecution dollars; that the of the suits amounted several hundred to required practically issues contested and all of their sharply were County time in and attention from the time the was filed up confirmed; to prices Court the time sales were that sale by greatly of the various of the various tracts enhanced efforts attorneys biddings filing procuring parties and in to raise petitions for purpose. that large record,
After careful consideration of the we are of the opinion assignments that that of errors should sustained and realty are entitled to.about sales of the 10% partition case. opinion
We that amount are of fees be allowed to petitioners County defendants in the proceeding Judge. Court is within the sound County discretion of the power County by upon Judge Chapter was conferred 183 1887, of the Acts of carried into the of 1932 as section 9190. Code 124 Marley, Tenn., 388, 137 W., Scott v. County
But we opinion are of the that the is a also Court jurisdiction, court limited and can jurisdiction exercise such as by is conferred it Reynolds Hamilton, Tenn. statute. App., (2d), Code, S. W. 986. And but section County jurisdiction fix partition Court would no to fees in cases. authority opinion
Under the above we are County jurisdiction Court fix has no the fees of solicitors for services courts, rendered in suits in other such as services rendered in the Chancery clearing Court in up to this property. title County jurisdiction Court has no fix the fees for services rendered or cases to settle controversies fees for services about Reynolds rendered hi other eases. v. Hamilton, supra. When Chancery the suit was filed in the Court Blanche against
Draper the collateral L. Draper, enjoining R. County Court proceeding, the collateral heirs could have filed a Chancery cross-bill Court and have had land sold in case. Chancery Where the titles are be settled and the has Court acquired jurisdiction subject-matter for the purpose of remov ing title, clouds from the partition Court will decree in kind or a sought for division of the sale when in that Head, court. Taylor, appears Carter 30. But it no sale asked, agreed Court it proceeding that that might quo stand in Draper statu until the settled, Court was after that suit was settled the parties by proceeded agreement under appears procedure partition. This property for sell said decisions, and the sale our
be sanctioned
App.,
Owens, 1 Tenn. Ch.
Apple v.
valid.
juris
no
had
stated, we think the
above
As
suits,
in other
fix the fees
diction
own court.
in its
fixing
cases
confined
erroneously assumed
County Judge
appears that
*6
rendered
only for services
not
fix
fees for all
the
the
Chancery Court
rendered
but for
partition case
services
clearing
titles so as to enable
up the
elsewhere
and
of
assumption
and
this
partition,
the lands for
Court to sell
and,
fees,
as
fixing of
for the
reference
ordered the
he
attorneys
various
the fees of
he fixed
shows,
of the
Clerk
and
title
pertaining
all
suits
rendered in
services
for their
property.
sale of
Chancellor,
or
finding
and
of the Master
A concurrent
law,
assumption of
County Judge,
an erroneous
on
and
binding
Clerk
Gaslight
Mutual
v.
appellate
court. Crutchfield
not
on
Co.,
.Ordinarily, a not allowed, is be of fees to the amount solicitors’ as to Chancellor Ed.), Chancery (4 binding appellate court. Suits in on the Gibson’s 9,W., 459, 42 S. Gillenwaters, Tenn., 446, 99 620; sec. Pearson Rep., 63 Am. St. as court
However, the lower it is within the discretion of complainant for both the attorneys’ he will allow whether fees in partition the common fund paid be defendant out only for an abuse cases, question and a review of this can be had W., 492. 388, 137 Marley, Tenn., 124 judicial discretion. Scott v. fix fees Now, view, proceed to principles with we will these evidence, think, ten the various solicitors. We under about cent, reasonable, of the would be to be divided as follows: per sales (1) Anderson, $1,750. & them fee We allow original petition filed the and have rendered for the reason conducting having and in the bids much valuable service raised. Bryant
(2) Botts, appears It that Botts has Ordinarily, half purchased about clients’ interest in fund. his attorney purchased an has an in land and conducts the where interest any 47 proceedings himself, J., he not entitled to fee. partition C. Cheney 66; Ricks, Ill., 533, E., 75; 48 606, sec. note N. Fla., 265, Cas., For Starbuck, So., 5 Ann. Girtman v. Bryant we have allowed and Botts of which this reason Botts Bryant one-fourth will be entitled to three-fourths. Bailey Butler, (3) represented $750. He defend- several petitions proceedings and filed and cross ants answers in that rendered case. some service
(4) appears B. Iiaile lie $500. allow We Cunningham agreement had represented several of the heirs but paid with them he was to be cash and he be suc $500 $500 should he attorneys, cessful with the suit. As testified to several of he be case, but we think rendered services valuable him agreement $500. bound his and will therefore allow Q. controversy is no Milwee. There about the allowed C. $50 attorneys paid and will out These are allowed various realty. sales the-question pass upon We do not fees of the various attor- other cases neys proceedings aside from the they may pursue will be remedies as allowed such in the other cases.
for the collection of fees services rendered for the payment cause will be remanded appeal including the fees herein The costs allowed. the common fund. the cause will be cut of costs of Faw, J., J., Felts, P. concur. Rehearing.
On Petition for rehearing by P. A been filed J. Anderson for a has raised in their solicitors, questions in which review the *7 former briefs. question was anything new, and each present does not upon by opinion in our filed on
fully passed us former considered and August 17, denied. 1940. It will therefore be argument, rehearing
“A which made no new petition for overlooked, fact as authority, pointed new out no material cited no 687, 705, 115 Melody App., 21 Tenn. Hamblin, denied.” (2d), W. 239. Judge Higgins, Bailey Joseph Upon motion fees for solicitors’ Botts for Butler Louis C. additional withdrawn, and the same cause is allowed to prejudice. dismissed without J.,
Faw, J., Felts, P. concur. INC., ROWDEN. 146 APPLIANCES, VALLEY TENNESSEE (2d) 845. S. W. August
Middle Section. January by Supreme denied Petition for Certiorari