The opinion of the Court was delivered by
Mr. Chief Justice McIver.
For a proper understanding of the questions raised by this appeal, it will be necessary that a copy of the decree of the Circuit Judge, as set out in the “Case,” together with the exceptions thereto, should be embraced in the report of this case. It seems to us that by an order of the Court, to which no objection appears to have been interposed, it was referred to the master to take and report the testimony in the case, and the case was heard by the Circuit Judge upon the testimony so taken'and fully set out in the “Case.” The present controversy seems to have had its origin in an action instituted by the defendants, M. M. Ashley and H. Irene Ashley, by their guardian ad litem, both of them then being minors, against the defendant, W. A. Holman, as executor of the last will and testament of the late Wm. Ashley, for the purpose of recovering their interests under his will. In that action the Misses Ashley were represented by A. B. Connor, the plaintiff in the present action. All the issues in that action were referred to the master, who, on the 14th July, 1889, made his report, finding that “the defendant, as executor, is due and owing to the plaintiffs $2,000, besides the lands now held by plaintiffs, under will of William Ashley, deceased, and of which they now hold possession. Wherefore, the master recommends that it be decreed that said defendant pay to said plaintiff, Mary Myrtle Ashley, who is now of age, $1,000, to the guardian of Harriet Irene Ashley, minor, $1,000, and that the land held by them as aforesaid be vested in them freed of all liability to account for same, and that the defendant pay the costs of these proceedings.”
[313]*3131 Two days prior to the making of said report an order was granted in the same case, referring it to the master to hear and determine what would be a reasonable fee for said A. B. Connor for his professional services in representing the Misses Ashley, plaintiffs, in that case. On the 13th of July, 1889, the master made his report,, finding upon “the testimony of two reputable attorneys of this bar” that the sum of $500 would be a reasonable fee. On the 15th of July, 1889, an order was granted by his Honor, Judge Witherspoon, confirming said report; and on the same day Judge Wither-spoon granted another order confirming the report of the master, bearing date the 14th of July, 1889, finding “the amount due to the plaintiffs in that case, the Misses Ashley, by the defendant therein, W. A. Holman, and requiring said defendant to pay over said funds and costs herein to the master within ninety days from the notice of the filing of this order;” and further ordering “that the parties hereto have leave to apply to the Court for any further order that may be necessary in the premises, and that out of said funds the master pay A. B. Connor, Esq., the fee for his services as reported by said master.” It must be kept in mind that all these orders were made in the case of M. M. Ashley and H. Irene Ashley against W. A. Holman, as executor of the will of Wm. Ashley, deceased, to which all these parties appear to have been regularly made parties, at least nothing' to the contrary appears. The only point made in reference to this matter being that, as M. M. Ashley had attained full age before any of these orders were passed, some proceeding was necessary in order to bring her before the Court in her capacity as a person sui juris. We do not understand that any such proceeding was necessary in a case like this* for, as we held in Shuttlesworth v. Hughey, 6 Rich., 329, where an infant brings an action by prochein amy under the old practice (now by guardian ad litem), and pending such action the infant attains the age of twenty-one years, the action is not thereby abated, but may be continued, if the infant elects in her own name, without the necessity of [314]*314any amendment of the proceedings — a mere suggestion of the fact entered on the record would be .sufficient; and whereas, in this case the infant after attaining full age receives the fruits of the judgment entered after that time, as it is apparent this lady did do, this is sufficient to manifest her election to proceed with the action.
2 3 Those orders having been made in a case of which the Court had unquestionable jurisdiction of the subject matter, as well as of the parties, and disclosing no infirmity on their face, cannot be regarded as void, but, at most, only voidable, and are binding on all the parties to the action until set aside by direct proceeding for that purpose. Crocker v. Allen, 34 S. C., 452, and other cases therein cited. While, therefore, the order of Judge Wither-spoon confirming the report of the referee, fixing the amount of the fee of the plaintiff herein for his professional services to the Misses Ashley in the case brought by them against W. A. Holman, as executor as aforesaid, was, no doubt, erroneous (Hubbard v. Camperdown Mills, 25 S. C., 496), yet it was not void for lack of jurisdiction, and there was error in so regarding it. The case of Ex parte Fort, 36 S. C., 19, is not applicable to this case, for the reason that in that case Mrs. Fort, when she became a party to the case of Boyd v. Lee, was a person sui juris; and, therefore, the fee to which the counsel who represented her was entitled, was a matter of contract either express or implied, and the Court had no authority to adjudicate the question as to the amount of such fee by a reference under an order granted in the case, in which counsel claimed to have represented her. Here, however, the Misses Ashley were not sui juris, when the case of Ashley v. Holman, as executor, was commenced, but were minors, incapable of contracting, and the fee of Mr. Connor, who it is conceeded did represent them in that case, was not and could not have been a matter of contract, and must, therefore, be ascertained in the universally accepted mode of proceeding in such a case, to wit: by a reference under an order in that cause, of which, however, as we have said, they [315]*315were entitled to notice. The fact that one of these young ladies, Miss M. M. Ashley, had attained the age of twenty-one years before any of these orders were granted, cannot, as we have seen, affect the question, especially in view of the fact that the record shows that the order confirming the report of the master establishing the amount due to the Misses Ashley by Mr. Holman, as executor, was taken, “on motion of Mr. Connor ;” and the undisputed fact is that Miss M. M. Ashley has accepted the fruits of that order obtained by Mr. Connor as her attorney. There can be no doubt that Mr. Holman had notice of the order of Judge Witherspoon, requiring him to pay to the master the sum of $2,000, found to be due by him to the Misses Ashley, and requiring the master to pay the fee of Mr. Connor out of said sum, for it was an order granted in a case to which he was a party, and of which he was bound to take notice; and in addition to this he says in his testimony: “Mr. Connor, as the attorney of said parties (referring to the Misses Ashley), did obtain a judgment against me as executor for $2,000, and I was ordered to pay the mone)*' into the master’s hands within ninety days from the date of said order. I was unable at that time to pay in cash to the master $2,000 and the costs, as I was directed to do by said order, and after that time I paid the costs to Mr. Connor, as I was directed to do by the order, and succeeded in giving Mamie M.
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The opinion of the Court was delivered by
Mr. Chief Justice McIver.
For a proper understanding of the questions raised by this appeal, it will be necessary that a copy of the decree of the Circuit Judge, as set out in the “Case,” together with the exceptions thereto, should be embraced in the report of this case. It seems to us that by an order of the Court, to which no objection appears to have been interposed, it was referred to the master to take and report the testimony in the case, and the case was heard by the Circuit Judge upon the testimony so taken'and fully set out in the “Case.” The present controversy seems to have had its origin in an action instituted by the defendants, M. M. Ashley and H. Irene Ashley, by their guardian ad litem, both of them then being minors, against the defendant, W. A. Holman, as executor of the last will and testament of the late Wm. Ashley, for the purpose of recovering their interests under his will. In that action the Misses Ashley were represented by A. B. Connor, the plaintiff in the present action. All the issues in that action were referred to the master, who, on the 14th July, 1889, made his report, finding that “the defendant, as executor, is due and owing to the plaintiffs $2,000, besides the lands now held by plaintiffs, under will of William Ashley, deceased, and of which they now hold possession. Wherefore, the master recommends that it be decreed that said defendant pay to said plaintiff, Mary Myrtle Ashley, who is now of age, $1,000, to the guardian of Harriet Irene Ashley, minor, $1,000, and that the land held by them as aforesaid be vested in them freed of all liability to account for same, and that the defendant pay the costs of these proceedings.”
[313]*3131 Two days prior to the making of said report an order was granted in the same case, referring it to the master to hear and determine what would be a reasonable fee for said A. B. Connor for his professional services in representing the Misses Ashley, plaintiffs, in that case. On the 13th of July, 1889, the master made his report,, finding upon “the testimony of two reputable attorneys of this bar” that the sum of $500 would be a reasonable fee. On the 15th of July, 1889, an order was granted by his Honor, Judge Witherspoon, confirming said report; and on the same day Judge Wither-spoon granted another order confirming the report of the master, bearing date the 14th of July, 1889, finding “the amount due to the plaintiffs in that case, the Misses Ashley, by the defendant therein, W. A. Holman, and requiring said defendant to pay over said funds and costs herein to the master within ninety days from the notice of the filing of this order;” and further ordering “that the parties hereto have leave to apply to the Court for any further order that may be necessary in the premises, and that out of said funds the master pay A. B. Connor, Esq., the fee for his services as reported by said master.” It must be kept in mind that all these orders were made in the case of M. M. Ashley and H. Irene Ashley against W. A. Holman, as executor of the will of Wm. Ashley, deceased, to which all these parties appear to have been regularly made parties, at least nothing' to the contrary appears. The only point made in reference to this matter being that, as M. M. Ashley had attained full age before any of these orders were passed, some proceeding was necessary in order to bring her before the Court in her capacity as a person sui juris. We do not understand that any such proceeding was necessary in a case like this* for, as we held in Shuttlesworth v. Hughey, 6 Rich., 329, where an infant brings an action by prochein amy under the old practice (now by guardian ad litem), and pending such action the infant attains the age of twenty-one years, the action is not thereby abated, but may be continued, if the infant elects in her own name, without the necessity of [314]*314any amendment of the proceedings — a mere suggestion of the fact entered on the record would be .sufficient; and whereas, in this case the infant after attaining full age receives the fruits of the judgment entered after that time, as it is apparent this lady did do, this is sufficient to manifest her election to proceed with the action.
2 3 Those orders having been made in a case of which the Court had unquestionable jurisdiction of the subject matter, as well as of the parties, and disclosing no infirmity on their face, cannot be regarded as void, but, at most, only voidable, and are binding on all the parties to the action until set aside by direct proceeding for that purpose. Crocker v. Allen, 34 S. C., 452, and other cases therein cited. While, therefore, the order of Judge Wither-spoon confirming the report of the referee, fixing the amount of the fee of the plaintiff herein for his professional services to the Misses Ashley in the case brought by them against W. A. Holman, as executor as aforesaid, was, no doubt, erroneous (Hubbard v. Camperdown Mills, 25 S. C., 496), yet it was not void for lack of jurisdiction, and there was error in so regarding it. The case of Ex parte Fort, 36 S. C., 19, is not applicable to this case, for the reason that in that case Mrs. Fort, when she became a party to the case of Boyd v. Lee, was a person sui juris; and, therefore, the fee to which the counsel who represented her was entitled, was a matter of contract either express or implied, and the Court had no authority to adjudicate the question as to the amount of such fee by a reference under an order granted in the case, in which counsel claimed to have represented her. Here, however, the Misses Ashley were not sui juris, when the case of Ashley v. Holman, as executor, was commenced, but were minors, incapable of contracting, and the fee of Mr. Connor, who it is conceeded did represent them in that case, was not and could not have been a matter of contract, and must, therefore, be ascertained in the universally accepted mode of proceeding in such a case, to wit: by a reference under an order in that cause, of which, however, as we have said, they [315]*315were entitled to notice. The fact that one of these young ladies, Miss M. M. Ashley, had attained the age of twenty-one years before any of these orders were granted, cannot, as we have seen, affect the question, especially in view of the fact that the record shows that the order confirming the report of the master establishing the amount due to the Misses Ashley by Mr. Holman, as executor, was taken, “on motion of Mr. Connor ;” and the undisputed fact is that Miss M. M. Ashley has accepted the fruits of that order obtained by Mr. Connor as her attorney. There can be no doubt that Mr. Holman had notice of the order of Judge Witherspoon, requiring him to pay to the master the sum of $2,000, found to be due by him to the Misses Ashley, and requiring the master to pay the fee of Mr. Connor out of said sum, for it was an order granted in a case to which he was a party, and of which he was bound to take notice; and in addition to this he says in his testimony: “Mr. Connor, as the attorney of said parties (referring to the Misses Ashley), did obtain a judgment against me as executor for $2,000, and I was ordered to pay the mone)*' into the master’s hands within ninety days from the date of said order. I was unable at that time to pay in cash to the master $2,000 and the costs, as I was directed to do by said order, and after that time I paid the costs to Mr. Connor, as I was directed to do by the order, and succeeded in giving Mamie M. Ashley and Irene Ashley full satisfaction as to their claims against me.” Mr. Tobin says in his testimony that Mr. Holman, in speaking of this settlement with the Misses Ashley, “outside of the Court,” said: “I would not have done that if Connor had made a reasonable charge for his services; he wanted $500 for his fee, which I didn’t consider that he was entitled to, and I didn’t intend, if I could prevent it, to állow him to impose upon these young ladies.” This testimony was not denied by Mr. Holman, when he was afterwards examined as a witness. This conduct of Mr. Holman, in utter disregard of an order of the Court in a cause to which he was a party, however commendable may have been its motive, and this we [316]*316fully concede to him, cannot receive the sanction of this Court.
4 5 There can be no doubt that the plaintiff is entitled to a reasonable fee for his professional services as attorney for the Misses Ashley, in the case of Ashley v. Holman, as executor, which he seems to have prosecuted to a successful result. Indeed, this seems to be conceded. The real controversy, is as to the amount of such fee. It is true that this amount was established by a judgment which on its face appears to be legal and valid, which must stand until set aside by a proper proceeding for that purpose, and, therefore, the judgment of the Circuit Court holding otherwise must be reversed. Yet, as it has been made to appear in this case that such judgment was based upon a reference held by the master without notice to the parties interested, who, therefore, have not yet had an opportunity to be heard as to what amount would be a reasonable fee which the3r ought to have, it seems to us that the judgment now appealed from should be reversed, without prejudice to the rights of the defendants herein, to institute proper proceedings to set aside the judgment rendered by Judge Witherspoon, fixing the amount of $500 as a reasonable fee for the professional services rendered by Mr. Connor to the Misses Ashley, in the case of Ashley v. Holman; and if said judgment shall be set aside, then the plaintiff herein shall have leave to obtain another order of reference to the master, to inquire and report what would be a reasonable fee to allow Mr. Connor for his professional services, in the case of Ashley v. Holman, of which reference all parties interested must have due notice.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, without prejudice to defendants, as hereinabove explained.