Porter v. Stewart , 163 Ga. 655 ( 1927 )

Beck, P. J.

(After stating the foregoing facts.) The exceptions contained in the main bill of exceptions go to the allowance of attorney’s fees to counsel for the plaintiff in the original petition, and to the assessment of dbsts and expenses, which are in part assessed against the plaintiff in error. The exception to the allowance of attorney’s fees is based upon two distinct grounds. The first ground is that the award is illegal and inequitable, as the court below was without power to make said award under the pleadings and the facts in the case. And the second ground is that the award of $1,000 as attorney’s fees, even if any sum is legally justifiable, “is excessive in amount and is an abuse of the discretion of the court, and is contrary to law and equity, for that the total amount of claim represented by the said counsel was alleged to be the sum of $1,900, and that under the law any award of fees should be based upon the amount of interest represented by the counsel to whom such award is made.” We are of the opinion that the court was authorized, under the law and the facts, to award fees to counsel for the plaintiff in the court below. Plaintiff had filed this suit to enforce his demand in a court of equity, and the plaintiff in error came in as an intervenor, voluntarily and of his own motion; and after the intervention was allowed, the suit proceeded for the original plaintiff and the intervenors to enforce their rights against the insolvent defendant, Mrs. Tagg, and against Equitable Life Assurance Society. The suit was properly filed upon a valid claim — a claim which was allowed by the final judgment in the case. The assignment to the intervenor was adjudged to be valid and given the preference shown by the judgment; and funds in the hands of the defendant corporation were ordered paid into the registry of the court. True, no receiver was prayed for or appointed, but the money was paid into the registry of the court, as we have stated; and this was analogous to the appointment of a receiver and the payment over of the funds in question to him. We think that the result obtained by the suit was beneficial to all the parties, that is, to the original plaintiff and the intervenors. In the case of Hobbs v. McLean, 117 U. S. 567, it was said: “When many persons have a common interest in a trust property or fund, and one of them, for the benefit of all and at his own cost and expense, brings a suit for its preservation or administration, the court of equity in which the suit is brought will order that the plaintiff be reimbursed his outlay from the property of the trust, or by proportional contribution from those who accept the benefit of his efforts.” It is true that the suit brought by the plaintiff in this ease'was not originally “in behalf of all” of these interested parties, but the intervenors came in and placed themselves in a position to reap the benefits of the suit. “But courts of equity have power to charge funds realized from, or preserved by, litigation with the costs and expenses of such litigation. . . To authorize the exercise of this power, the litigation in which the costs and expenses were incurred must have been in promotion of the interests of those eventually found to be entitled to the fund. In other words, all the parties must have a common interest in the property or fund involved. Furthermore the results must have been in fact beneficial, and the costs must have been incurred for the benefit of all interested.” 15 C. J. 104, § 208; Loudon v. Coleman, 62 Ga. 146. In § 3374 of the Civil Code, relating to the allowance of counsel fees, it is provided that “In claim cases the attorney causing the levy and prosecuting the rights of the plaintiff in fi. fa. shall be entitled to his fees from the proceeds of the property condemned, although older liens may demand and recover the proceeds from the immediate client of such attorney.” And in the case of Bullard v. Leaptrot, 57 Ga. 522, it was said: “When a younger fi. fa., by process of garnishment, brings money' into court, and an older judgment takes all the money, the expense of bringing in the fund, and all expenses, as well as the net sum realized by the older judgment, should be credited on the older fi. fa.” See also Baxter v. Bates, 69 Ga. 587, where the same principle is ruled. We think that the instant case is analogous in principle to the cases referred to, to the extent of making the fund which the court ordered- paid into the registry of the court chargeable with attorney’s fees and costs; and the court, having all the pleadings in the case and all the facts, was authorized to award such costs and attorney’s fees upon motion in the case, without the filing by the plaintiff of a formal petition or written motion for such allowance.

As stated above, a second attack upon the allowance of attorney’s fees was upon the ground that it was excessive. But we can not say as a matter of law that it was so excessive as to require a reversal of the judgment on account of the amount. In paragraph 32 of the auditor’s report we find the following: “The Equitable Society holds $2,605 in premiums, and the present value of commissions to accrue after September, 1925, is $5,700, — a total of assets subject to distribution by this court of about $8,305. This fund should and doubtless will be taxed with the costs and expenses of this case and hearing.” And in the same paragraph of the report is a finding that Mrs. Tagg is insolvent. In allowing fees to the moving creditor in such a case as this, they should be considered and assessed, in cases authorizing such an assessment, with reference to the interest represented by such counsel, and not be fixed solely by the whole amount to be distributed amongst all the creditors. This was ruled in the case of Hines v. Brunswick & Albany R. Co., 50 Ga. 563. And while, if the amount claimed by the plaintiff in the court below alone was considered, the amount of the fee finally allowed would be excessive, we think that both the amount of the funds brought into court and the amount of the finding in favor of the original plaintiff should be considered. The intervenors have had the priority of their assignments established and have procured an order and judgment bringing in some $8,000 to be paid into the registry of the court. The court had the pleadings and the evidence, and knew the amount of labor imposed upon counsel who had obtained these results, and the character of the service; and we can not say that the judge abused his discretion in making the allowance of attorney’s fees and costs.

Judgment affirmed on the main bill of exceptions. Cross-bill dismissed.

All the Justices concur, except Gilbert and Hines, JJ., disqualified.