30 S.C. 483 | S.C. | 1889
The opinion of the court was delivered by
This appeal involves the question of the allowance, out of funds in the Circuit Court, of a fee for the professional services of the attorney for the plaintiff. The appellant’s statement of facts, which-are not questioned, is as follows : “Wylie Kelly, late of the County of Kershaw, departed this life intestate, leaving a considerable estate of real and personal property. Letters of administration were granted to one John R. Shaw about January 22, 1875, and proceedings were thereafter commenced in the Probate Court for the partition of the real estate of the decedent, and progressed to a sale of the lands; but before compliance by the purchasers, it was decided by this court that the Court of Probate was without jurisdiction in such matter, and the proceedings came to an end. Thereupon this action was commenced by the plaintiff, Emily C. Wilson, one of the distributees : (1) to confirm the sales made by the Probate Court, as they were considered advantageous; (2) to adjust the rights of all parties to the cause on account of advancements received and debts due by the distributees; and (3) for an accounting by the administrator. The plaintiff, not having purchased any of the lands at the probate sale, had no interest in any of the questions which arose, other than such as was in common between her and the others, who were ultimately decided to be entitled to the estate. During the progress of the litigation, a receiver was appointed, and several important questions arose and provoked active litigation, Mr. Workman, the plaintiff’s attorney, taking the leading part in the litigation.”
The points made and argued are all clearly stated in the report of the master, J. D. Dunlap, Esq., which should appear in the report of the case. The master found that $1,000 would be reasonable compensation for the services of Mr. Workman; but that, although the services rendered inured to the benefit of all the heirs, there was no contract relation between them and the attorney of the plaintiff, either directly or through some agent or representative, and therefore the same affords no legal foundation for a charge against such other persons. Upon exceptions to the
From this order the plaintiff appeals upon the following exceptions: “1. Because his honor held that ‘the doctrine which allows fees to a counsel for a representation of a class does not apply to . a case like this.’ 2. Because his honor did not find as a matter of fact, that the services of plaintiff’s counsel, mentioned in the master’s report, were rendered in creating and preserving a fund in the hands of the court for common distribution among the parties now entitled thereto, with the acquiescence and approval of the court administering said fund, and the plaintiff stood before the court as a representative of such class. 3. Because his honor disallowed the plaintiff’s claim for counsel fees,” &c.
Section 140 of the Code provides, that “when the question is one of a common or general interest of many persons, or when the parties are numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” The question as to the principle on which counsel fees may be charged, has lately been several times before this court; and, as we think, it has been settled, that “when compensation is allowed out of a common fund belonging to others, for expenses incurred and services rendered in behalf of the common interest, it is upon the principle of representation or agency— e. g., to a plaintiff in a creditor’s bill, or to a defendant made a party as a representative of a class too numerous to be served.” See Hand v. Railroad Company, 21 S. C., 165; Westmoreland v. Martin, 24 Id., 240; Hubbard v. The Camperdown Mills, 25 Id., 496.
According to these authorities, the only matter for decision here is whether the question made by the plaintiff was “one of a common or general interest of parties too numerous to be served,” in the sense of the rule. The parties were not numerous, and were all brought by summons before the court. It was held in the case of Bannister v. Bull (16 S. C., 229), that the words, “one or more to sue for the benefit of others,” in the Code, does not apply to co-tenants, “but were manifestly intended for creditors of an insolvent estate, and cases of that character, where the interest is in common. They (co-tenants) may be said, in one
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
