Coe v. East & West R.

65 F. 16, 1894 U.S. App. LEXIS 3111

• Court: U.S. Circuit Court for the District of Northern Alabama
• Decided: December 10, 1894
• Status: Published

Opinion

PARDEE, Circuit Judge.

The matter of the intervention of Frank Sullivan Smith, heretofore solicitor for Eugene Kelly and John Byrne in the main- case and in the dependent suit of Grant Bros, v. Brownings, Kelly, and Byrne, and others, wherein intervener, Smith, having been discharged as solicitor for the said Eugene Kelly pending the litigation, petitions the court to fix and assess the amount of his compensation as against Eugene Kelly, and determine the extent of his lien, has been submitted on exceptions to the report of the special master. The very comprehensive and well-considered report of the special master answers all the important exceptions taken thereto, save and except the one which objects to the finding that the intervener has a lien for his compensation, as the solicitor for Kelly and Byrne, upon the property, rights, and franchises of the East & West Eailroad of Alabama.

The undisputed facts seem to be that the intervener, Smith, was employed in his professional capacity to represent Messrs. Kelly and Byrne in protecting and defending their very large bonded interest in the East & West Eailroad of Alabama, amounting to 966 bonds out of a total of 1,750; that as solicitor, so employed, he rendered valuable services, and made outlays for expenses, in protecting the said bonded interest, and was so far successful therein as to secure a full recognition of such interest as against the very serious attacks made against its validity. After defending the suit of Grant Bros. v. Brownings et al. successfully, and after the decree of foreclosure had been entered in the main case in favor of all the bonded interest, including that owned and controlled by Kelly and Byrne, but before a sale of the railroad property under the decree of foreclosure, Kelly discharged Smith as his solicitor, and the discharge was recognized by the court, reserving to Smith the right to have his compensation fixed and the extent of his lien declared. , Under the authorities cited by the special master, and in the very able briefs submitted to me, it is clear that, when Solicitor Smith was discharged, he was entitled to be paid for his services by his client Kelly, and, in default thereof, to have the amount due him ascertained by the court, with recognition of a lien upon the interest which Kelly had in the subject-matter of the litigation. It is found by the special master, and not disputed, that the extent of the intei*est represented by Solicitor Smith in the litigation in the main and dependent suit was the 966 bonds owned and controlled by. Kelly and Byrne. At no time did Solicitor Smith claim to represent Mr. Kelly in any interest in the receiver’s certificates; nor in any other interest outside of the 966 bonds. Mr. Smith’s lien for compensation for his services was, in equity, fixed and determined at the time he was discharged, and it is difficult to see how any subsequent action of Mr. Kelly in purchasing the East & West Eailroad of Alabama could enlarge" or defeat the lien. Even if Mr. Kelly had purchased the railroad property as a bondholder, representing the said 9(56 bonds, Mr. Smith’s lien would not thereby have been enlarged and extended io the railroad property, except so far as the 966 bonds were by such purchase merged into the railroad property. As a matter of fact, — undisputed in this record, — Mr. Kelly purchased the East & West Railroad of Alabama as any stranger might have done. TJndei the terms of the decree of foreclosure, the sale was of the railroad property, free and clear of all incumbrances save for receiver’s certificates and obligations, and thereby all lien of the mortgage bonds was divested as to the railroad properly, and remitted to the funds derived from the sale.

A decree will be entered in the case amending tlie special master’s report so as to deny a lien in favor of Frank Sullivan Smith upon the property, rights, and franchises of the East & West Railroad Company of Alabama, but recognizing his lien upon Mr. Kelly’s interest in die 966 first consolidated mortgage bonds of the East & West Railroad Company of Alabama, claimed in the litigation to have been owned by Kelly and Byrne; and dud, as amended, all exceptions be overruled, and the special master’s report be approved and confirmed.