Atchison v. City of Owensboro

71 S.W. 864, 114 Ky. 706, 1903 Ky. LEXIS 27

• Court: Court of Appeals of Kentucky
• Decided: February 4, 1903
• Status: Published

Opinion

Opinion op the court by

JUDGE HOBSON —

Apbirming.

Appellant was the attorney of the City of Owensboro from January 1, 1894, to January 1, 1898. In the year 1894 there was a controversy between the banks and the city as to whether they were liable to municipal taxation. As city attorney, appellant advised the tax collector to proceed to collect the taxes. As soon as proceedings were instituted for this purpose by the tax collector, the, banks filed their petitions in the Daviess circuit court, obtaining an injunction against the collection of the taxes. Appellant, as city attorney, was directed to defend the suits, which he did, and on March 2, 1895, obtained a judgment in the Daviess circuit court dismissing the petitions, and dissolving, with damages, the injunctions. The damages awarded on the dissolution of the injunctions amounted to something over $1,000. The banks prosecuted an appeal from the judgment of the Daviess circuit court to this court. Appellant, as city attorney, represented the city on these appeals, and on March 24, 1897, obtained an affirmance of the judgment of the circuit court, with 10 par cent, damages on the supersedeas. From the decision of this court the banks, on August 30, 1897, prosecuted an appeal to the supreme court of the United States, and before that appeal was heard appellant’s term as city attorney ended. After the end of his term, he wrote to the city council, calling attention to the cases, and offering to go to Washington and attend to them, if the council wished him to do so. The council laid the communication on the table. Appellant, however, at his own expense, went to Washington, and, in connection with his successor, the acting city attorney, attend-ed to the cases in the supreme court; his expenses in this matter being something over $90. On April 3, 1899, the supreme court affirmed the judgment of this court. After this the city council directed its tax collector to collect the taxes, which he did, and refused to pay appellant anything for his services, or on account of his expenses, and he thereupon filed this suit to recover therefor. The amount collect■ed by the city tax collector from the banks was $18,859.56, and appellant insists that a much larger amount was due by them which the tax collector failed to collect. He •claims that he is entitled to 10 per cent, on the amount paid by the banks, or which should have been paid by them.

Section 3314, Kentucky Statutes, is as follows: “The city attorney shall be paid an adequate annual salary, payable monthly out of the city treasury, the same to be fixed by ordinance before his election and not changed during his term of office. In addition to his salary, the city attorney shall be paid his expenses when it shall be necessary for him to go out of the city to attend to legal business for the city, and ten per cent, upon all sums recovered and collected for him for the city.” As appellant was not city attorney when he went to Washington, and was not requested or employed by the council to go there, hé has no claim against the city for his expenses in this behalf. The city attorney then in office did go in behalf of the city, and was in Washington attending to the matter, and appellant’s position in the case was wholly that of a volunteer. He has no claim, therefore, against the city, for the docket fees allowed in that court, or for his personal expenses. The services rendered in the Daviess circuit court and this court stand upon a different plane. He was the city attorney when these services were rendered. In attending to the cases he was in discharge of his duties as city attorney. Whether such services, in the contemplation of the statute,, were covered by the “adequate annual salary, payable monthly out of the city treasury,” as therein provided, or. whether he is therefor entitled to 10 per cent, of the sums in controversy in those actions, is a question which must be-determined from the language of the statute itself. The suits which the banks had brought against the city were proceedings instituted by them to prohibit the city from collecting the taxes. Appellant merely defended these suits.. He did not recover anything in those actions, except the-damages on the dissolution of the injunctions and the damages on the supersedeas. The term “recover” has a well-defined meaning of the law, and this meaning has been the matter of adjudication by this court prior to the adoption of the present statutes. Under the statute giving an attorney a lien for money or property, which may be recovered in an action prosecuted by him, it was held that the defendant’s attorney, who merely defeated a judgment which was sought against his client, had no lien on the fund which was in controversy. Wilson v. House, 73 Ky., 406.. We therefore conclude that for merely defending the suits, brought by the banks it can not fairly be said that appellant recovered anything for the city, except the judgment for damages, and that he is not 'entitled, under the statute,, to 10 per cent, of the amount of the taxes in controversy in that case, which he did not in any legal sense recover. The purpose of the statute seems to have been to make the attorney diligent in recovering and collecting money due the city where the claim was placed in his hands for collection. If the statute were construed to give the attorney 10 per cent, of the amount in controversy in all actions which he might defend, the purpose of the statute in providing for Mm an adequate annual salary would be entirely ■defeated.

The court adjudged appellant entitled to 10 per cent, of the damages recovered by him for the city, and of this the city complains on the ground that he did not collect the money. But the statute should receive a reasonable construction. Appellant obtained a judgment for the money, .and an affirmance of the judgment of this court. . The collection of the judgments was delayed by the appeal to the .supreme court of the United States, without his fault, and by matters over which he had no control. He did all he ■could do. The judgments were good, and, in view of appellant’s faithful services for the city, and his skill and efficiency in those actions securing to the city valuable rights, which it enjoys, we are not prepared to say that, under .all the facts of the case, there was any error of the court in the judgment to this extent.

The judgment complained of is therefore affirmed on the ■original and cross-appeal.

Petition for rehearing by appellant overruled.