Bowling v. Scales

1 Tenn. Ch. R. 618

• Court: Court of Appeals of Tennessee
• Decided: April 15, 1875
• Status: Published

Opinion

The Chancellor:

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At a former term of this court, in tbe case of Yourie v. Nelson & others, I bad occasion to consider tbe power of tbe court, and tbe proper practice in the exercise of that power, in allowing compensation to tbe guardian ad litem and solicitor of a defendant under disability, where tbe appointment was made by tbe court for the protection of tbe rights of such defendant, and where there was no property of the defendant out of which to make compensation. I held that the allowance in such cases was in the nature of taxablé costs, and was not to be measured by the usual standard of professional services.

The present case raises the very different question as to the measure of compensation where the services are rendered for an infant having property, and touching the preservation or administration of that property. In such cases, no reason occurs why the compensation should not depend upon the same considerations, and be governed by the same rules as those which regulate the compensation for similar services on behalf of adults sui juris. 4 Paige, 87.

Where adults are concerned, even if they are acting in a fiduciary capacity, as trustee, for example, or administrator, executor, or guardian, there is a person competent to contract, with whom the amount of compensation can be settled in advance, or agreed upon after the services have been rendered. If the lawyer and client cannot agree, the courts are open for the adjustment of their respective rights. The remedy is, ordinarily, by action at law, but if the lawyer has acquired a lien on the property of his cilent, he is entitled to come into this court to enforce that lien. Hunt v. McClanahan, 1 Heisk, 503. And this he may do by a petition in the cause in which the lien has been acquired, or by an original bill, the client being, of course, entitled to his day in court for the purpose of asserting his rights, and, to this end, to the service of process as in other cases, or equivalent notice. The proceeding by petition is, in substance, a suit in invitum, to ascertain the amount of the compensation justly due for the services rendered, and t6 enforce the lien secured for the payment of such compensation. 1 I. Ch. 22.

In the case of infants and married women, where the former has no general guardian whose duty it is to protect the interests of his ward, and where the latter has no trustee of the specific property sought to be reached, it has been the practice in the courts of this state, upon motion in behalf of tbe solicitor baying a lien, to make a reference to tbe master to ascertain and report wbat would be reasonable compensation for tbe services claimed. Tbe idea upon wbicb tbis practice bas grown up was, doubtless, that it was tbe duty of tbe court to watcb over tbe interests of the persons under disability, and that tbis duty would be rigidly performed. It is obvious that tbe practice is not consistent with tbe theory that such proceedings between attorney and client should be in tbe nature of a suit, for, in that view, tbe person under disability ought to be represented by a guardian ad litem. It is obvious, too, that tbe position of tbe judge, under tbe practice in question, is anomalous, being partly judicial, and partly, if be properly perform bis implied duty of protecting tbe person under disability, that of an advocate. Tbe Supreme Court have, in a recent case not yet reported, [Perkins v. Clack, December Term, 1871, at Nashville] corrected tbis erroneous practice, and have held that the proceeding must be by a reference or petition to wbicb tbe person under disability is made a defendant, duly served with process or notice, and defended by a guardian ad litem. Tbis mode of proceeding is correct in theory, and eminently wise and proper in practice. It changes wbat bas heretofore been an ex parte proceeding, into wbat it should be, a proceeding inter partes, each party being antagonistic, and each properly represented. Tbis practice I shall hereafter require to be pursued in all cases in wbicb a solicitor seeks to enforce a ben upon tbe property of a person .under disability for professional services, where the amount of tbe compensation demanded is such as to justify litigation. Tbe compensation of an unprofessional guardian ad litem, or of a guardian ad litem and sohcitor in tbe nature of taxable costs, require ordinarily no reference, tbe amount being always bmited within a narrow compass. And even where tbe element of professional labor is to be taken into consideration, but tbe court can see that tbe amount claimed is tbe lowest usually demanded for similar services, tbe reference would be a useless expense, and tbe allowance may be safely entrusted to the sound discretion of the judge.

And this leads to the settlement of another point of practice in such cases. If an attorney sue his client at law, or file his petition or bill in this court to enforce -his lien on property, he is expected to state the amount of his claim, and, at least, the general nature of his services. In estimating the value of jnofessional services, there is a personal element which neither the applicant, the court, nor his brother lawyers who may be called on as witnesses, can or ought to ignore. The same services rendered by a young lawyer with the ink on his license scarcely dry, and by a veteran of forty years’ experience, who may have occupied high judicial position, will, properly enough, be measured by each by a very different standard, and will entitle each to very different compensation. The applicant should, therefore, state the nature and particulars of services rendered, and his own estimate of the value of such services, or charges made by him therefor.

The report in this case must be set aside, and the solicitor will be required to institute formal proceedings in accordance with the practice indicated.