Smith v. Alexander , 80 Ala. 251 ( 1885 )

SOMERVILLE, J.

The first assignment of error is based on the chancellor’s confirmation of that portion of the register’s report having reference to the amount of counsel fees allowed appellant, Smith, as solicitor in the cause. This allowance does not appear, in onr opinion, to be unreasonably small, according to our understanding of the testimony. It is shown that Mrs. Margaret E. Smith was deceased at the time of the issue of the execution in her favor, and of the collection of the money by the sheriff, and this fact was known to the appellant, who, as attorney in the cause, was controlling the execution. The execution was, therefore, void, as were all proceedings taken under it. — -Stewart v. Nuckols, 15 Ala. 225; Freeman on Executions, § 35. For the collection of this money the attorney was not entitled to charge any fee.

The funds thus realized, having been in the custody of the Chancery Court, and allowed to go into the hands of appellant Smith, as a solicitor and quasi officer of the court, were held by him in a trust capacity. Iiis undertaking was to keep the money subject to the order of the court, and to pay it as the court might direct. The trust and confidence thus reposed in, and assumed by him, rendered him subject to the summary jurisdiction of the court. The chancellor could, therefore, according to an elementary principle of equity, compel him to pay over the fund, according to his directions, by the summary process of attachment. In all such cases, however, there should be notice, and an opportunity to show cause should be afforded the delinquent party. — Pinkard v. Allen, 75 Ala. 73.

The Chancery Court, however, had no jurisdiction to order an execution against the sureties on Smith’s bond, especially without giving them notice. • They had no custody of the money, and their’s was no trust relationship. Their obligation was purely legal, the condition of the bond being that their principal should keep the fund subject to the order of the court. Upon such a bond as this the chancellor had no power to render a judgment. The sureties were entitled to their day in a court of competent jurisdiction, where they could be heard in presenting their defense, if any they had. The chancellor should have ordered the register to sue on the bon d in a court of law in order to charge the sureties, as is the practice in the case of a receiver’s bond, from which the present obligation can not be distinguished in its essential features.

The case of Dudley v. Witter, 51 Ala. 456, is opposed to this view, and to this extent is overruled as unsupported by either principle or precedent.

The decree of the chancellor is reversed and the cause remanded.