Willingham v. Hood , 242 Ala. 686 ( 1942 )

After the will of Mattie F. Abbott, deceased, had been admitted to probate, and the administration of the estate had been removed into the circuit court sitting in equity, appellees filed their petition in said pending administration proceedings, seeking an allowance of attorneys' fees, under the provisions of § 63, Title 46, Code of 1940, out of said estate payable to the petitioners, but to be taxed as part of the costs in said proceedings.

The administrator, cum testamento annexo, demurred to the petition, the court overruled the demurrer and the administrator appealed.

The appellees insist that the appeal should be dismissed because it does not fall within the influence of § 755, Title 7, Code of 1940, authorizing appeals from interlocutory decrees.

Speaking with respect to such allowance in Farmers' Bank Trust Co. v. Borroughs, 217 Ala. 97, 114 So. 909, 911, it was observed:

"The primary debtor to an attorney for all his services rendered pursuant to his employment is his employer. The statute while making the allowance payable directly to the attorney, aims thereby to relieve the party to the extent he had rightfully incurred expense for services from which all have reaped a benefit. Whatever good faith may prompt a beneficiary in the estate to seek relief which would, if obtained, inure to the common benefit, unless and until it is obtained, he cannot call upon the others to share his burdens. The results of the litigation, the harvesting of a common benefit, is the basis for the allowance. This was fully discussed and clearly decided in the recent case of Dent v. Foy, 214 Ala. 243, 107 So. 210.

"It follows that any advance adjudication upon what services in the case may call for an allowance of attorney's fees is premature. The cause having proceeded only to the filing of the bill, the demurrer, and decrees thereon, no relief having been granted working benefit to any of the parties litigant, the question of attorney's fees is a moot question.

"The request for an allowance of attorney's fees may appear in the prayer only, or it may be presented by petition when the occasion arises to ascertain the costs that shall be adjudicated and taxed on final decree in the cause, a time when the services rendered, the results, and the consequent basis of allowance shall have become known to the court in course of the proceedings. In case of allowance, it is proper on a reference to direct the register what services shall be considered in awarding fees, all subject to review on appeal.

"If the claim for attorney's fees be set up in the body of the bill, it will be treated not as an asserted ground of equitable relief subject to demurrer, but as information that such claim is asserted to be dealt with when occasion arises.

"To hold such averments subject to demurrer, because wholly bad, too broad, or otherwise wanting in the elements of good pleading, would result in halting the litigation between the parties to settle in advance incidental questions which may or may not become important in the end. This result we would avoid. We therefore hold this feature of the bill not a proper subject of demurrer, and that it was properly overruled. This was the course taken touching a claim for attorney's fees set up in the body of the bill in Wilks v. Wilks, 176 Ala. 151,159, 57 So. 776."

Therefore treating what appears in the record, labeled "order overruling demurrer to petition for solicitor's fees" as a decretal order, it does not fall within the influence of said § 755, cited above, and will not support an appeal. Devane v. Smith, 216 Ala. 177, 112 So. 837; Montgomery, Superintendent of Banks v. Jefferson County, 228 Ala. 568, 154 So. 785; Gant, as Trustee, v. Blanche K. McCarty, ante, p. 350, 6 So.2d 17.

The appeal is dismissed.

GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.

On Rehearing.