Schaefer v. Austin , 109 Ala. 373 ( 1895 )

HARALSON, J.

It is manifest that the court below erred in the judgment it rendered.

1. As for the $3.45 of costs which goes to make up the judgment rendered for $23.45, it is sufficient to say, that the complaint does not seek to. recover it. It seeks to recover only such costs as were adjudged against the plaintiff in this suit, who was the defendant in the detinue suit. The proof shows, without conflict, that no costs were adjudged against this plaintiff as defendant in that suit, but all the costs were adjudged against Mary Schaefer, the plaintiff in that case.

2. As for the fee of $20 to said Wade, it is too clear for argument, that under the facts of the case, the plaintiff owed him nothing, and was not liable to him for anything for professional sei vices. Being the indemnitor of the appellee as constable to make the levy, for which he was sued in detinue, the appellee was the mere agent of Wade in that matter, and in defending the detinue suit. When plaintiff notified Wade that he had been sued in detinue for the property levied on, and requested him to look after the case, he was in good faith notifying Wade to look after his own interest, to protect himself against liability on his indemnifying bond. If

L Wade was entitled to anything at all, as an attorney, for defending the detinue suit, it was from the party he served in the cause, — the said Shields, for whom the levy was made. If plaintiff was under no contract express or implied to pay an attorney’s fee to Wade, no such fee should have been allowed in a suit prosecuted in plaintiff’s name against appellants for the benefit of Wade. There being no obligation from him to Wade', for compensation for services, Wade’s fee, if anybody owed one, was not an element of damage in a suit on said detinue bond. If plaintiff lost nothing and was not liable for anything, he,was not entitled to compensation and judgment therefor. — Miller v. Garrett, 35 Ala. 96; Foster v. Napier, 74 Ala. 393; 1 Suth. on Dam. 17.

The finding of the court below, — a jury having been waived,— should have been against the plaintiff, and in favor of defendants. The judgment rendered in the cause will be reversed, and one here rendered in favor of defendants below, the appellants here.

Reversed and rendered.