22 So. 2d 331 | Ala. | 1945
Basil A. Wood (appellant in this proceeding) filed an original bill in equity against the City of Birmingham, a municipal corporation (appellee in this proceeding). The bill alleged in substance that complainant was one of a class of municipal stadium certificate owners and that these certificates were sold under a trust agreement set forth in the bill. The suit proceeded to a final decree in the trial court. Prior to rendition of the final decree Basil A. Wood filed a motion to fix an attorney's fee for his services in connection with the trust. The question of the attorney's fee was reserved for further orders by provision of the decree. The present proceeding is on the motion to fix the attorney's fee.
The City of Birmingham took an appeal from the foregoing decree in the original action to this court. In this court the decree of the lower court was modified and affirmed. See City of Birmingham v. Wood,
(a) Proper and reasonable expense of maintaining, repairing and operating the stadium and its equipment.
(b) Repayment to the City of Birmingham, without interest, of such funds as it shall have advanced for the construction and equipment of the stadium.
(c) Payment and retirement of the certificates with interest at 5% from date as therein described.
It developed that the stadium cost $108,000 more than contemplated and instead of advancing $150,000, the city advanced $258,000. During 1929 a War Memorial entrance to the stadium was erected at a cost of $17,114.14, which was paid for out of the trust fund by the city. The city also made disbursements out of the trust for certain expenses. Reference to the decision of this court, supra, will show the city was required to return to the trust fund the amount of $17,114.14 expended for the War Memorial entrance. Also the city was denied priority as to its claim on the trust fund for the additional $108,000 spent on the stadium.
As stated, the present controversy was tried in the lower court on the petition to fix the attorney's fee. We quote in part from the decree of the lower court:
"The suit was not conducted for the purpose of producing a benefit for the City of Birmingham * * *, and no benefit whatever has accrued to the City of Birmingham by the final judgment of the Supreme Court in the cause. * * *
"It is therefore, considered, ordered, and adjudged, and decreed by the court that the plaintiff's petition insofar as it might be construed as seeking a decree requiring the City of Birmingham, as Trustee, or otherwise, to pay the plaintiff an attorney's fee (out of the fund derived from the operation of the stadium) prior to the reimbursement in full of the City of Birmingham for the $150,000.00 expended by it in the construction and erection of the stadium (and for the payment of which said claim for $150,000.00 the City of Birmingham has priority over the claims of the certificate holders) be and the same is hereby denied, disallowed and dismissed.
"Still assuming, but not deciding, that the suit was a class suit, the court has considered the matter of the propriety of now fixing an attorney's fee for the plaintiff, and directing that it be paid if and when the City of Birmingham shall have been reimbursed for said $150,000.00. The difficulty which immediately besets the court in a consideration of that question is that it is impossible at the present time to ascertain to what extent, if any, the certificate holders will be benefitted in the future by the final judgment which was rendered in this cause by the Supreme Court * * *.
"It is, therefore, considered, ordered and adjudged and decreed by the Court that jurisdiction of the plaintiff's petition insofar as it may be construed as seeking a decree directing the payment of an attorney's fee to plaintiff out of funds that may become available in the future for the retirement of the stadium certificates * * * is retained; with leave to the plaintiff to apply to the court for the hearing of said aspect of said petition when the plaintiff considers himself in a position to reasonably satisfy the court that an actual and real benefit will accrue to the holders of the stadium certificates as a consequence of the final decree of the Supreme Court rendered in this cause."
The motion to fix an attorney's fee, after alleging the items of the work done by the attorney, concludes with a prayer, from which we quote in part: "* * * that this Honorable Court decree the said sum due and payable to the said Basil A. Wood, and designate the fund from which the said sum shall be paid; and order the payment thereof; and tax such sum as part of the administration expenses of the Stadium Trust, or from other appropriate funds of the Defendant; and Plaintiff prays for different and more general relief, and will ever pray."
We think it is clear that the decree taken in connection with the petition on which it is based shows two separable and distinct issues: first, whether the attorney, if entitled to any compensation at all, is entitled to be paid out of the stadium fund prior to the right of the City of Birmingham to reimbursement for the $150,000 advanced by it and, second, whether the attorney, if entitled to any amount, should be allowed payment from the fund for his services after the city has received reimbursement for the aforesaid $150,000. The right to payment under the first issue must necessarily be predicated on services of benefit to the common or entire interest, that is, both the City of Birmingham and to the stadium certificate owners. Dent *19
v. Foy,
Rule 69 is substantially the same as Federal Rule of Civil Procedure
While the City of Birmingham takes the position upon substantial grounds that Basil A. Wood is not entitled to a fee from the City of Birmingham, it argues, without waiver as to the merits, that this court is without jurisdiction to pass on the merits. Accordingly we proceed to discuss the question of jurisdiction.
The aforesaid decree on the petition for allowance of an attorney's fee was rendered on May 4, 1944. On May 31, 1944, petitioner filed a motion to modify the decree of May 4, 1944, by striking therefrom that part of the decree which we have classed as being interlocutory. The motion was continued from time to time and was overruled on October 11, 1944. According to the record, this appeal was taken on November 9, 1944, from the decree of October 11, 1944. The case is submitted here on the merits, petition for alternative writ of mandamus and the demurrer thereto.
Omitting consideration of the motion, it is clear that the time for appeal from the decree of May 4, 1944, had expired. § 788, Title 7, Code of 1940. What, then, is the scope of the appeal, taking into consideration the motion to modify? Our view is that the motion does not aid appellant since denial of the motion "is not appealable or reviewable on appeal." Equity Rule 62; Brown v. Lee,
We come now to the petition for mandamus. It has been pointed out that the court was justified in rendering a final decree on the claim of the attorney, so far as it sought priority over the City of Birmingham for its expenditure of $150,000, and was further justified in entering its interlocutory order in the same general decree. There was no effort in the motion to vacate or set aside that part of the decree of May 4, 1944, which was final, but only to expunge that part which was interlocutory. Mandamus will not issue to compel a court to do anything that it has not been asked to do. Accordingly, we will not review by mandamus the action of the court in rendering its final decree. Ex parte Edwards,
So far as the interlocutory order of May 4, 1944, is concerned, the court lost no jurisdiction over this order for the sufficient reason that the order is interlocutory and as to the aspect of the case with which it deals the cause is "yet in fieri." Sawyer v. Edwards,
It results that the appeal is dismissed and the mandamus denied.
Appeal dismissed and writ denied.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.