Ex parte Smithson

108 Tenn. 442

• Court: Tennessee Supreme Court
• Decided: March 22, 1902
• Status: Published

Opinion

(On Original Motion.)

Caldwell, J.

Heretofore, at the present term, this Court affirmed a judgment, obtained by Clarence J. Davis, a minor, twelve years of age, who sued by next friend, against the American Lead Pencil Company, in the Circuit Court of Marshall County, for the sum of $2,875.00.

The attorneys who represented the plaintiff in chat litigation, now file a sworn application, supported by the affidavits of other persons cognizant of the facts, and thereupon move the Court to allow them 30 per cent, of the recovery as fees for the services rendered.

These gentlemen have unquestionably rendered their client valuable services, and for such services they are as certainly entitled to a lien on his recovery for reasonable compensation. This they may how have declared on the minutes of this Court, but the amount of their fees cannot be fixed and adjudged on this ex parte application.

That is a matter to he determined in some suitable proceeding in which the minor will have an opportunity to be heard; or it might probably be determined by contract with his guardian, when one shall be appointed.

In- response to another motion, an order will be made directing the Clerk of this Court to hold the proceeds of the judgment in question, when collected, subject first to the lien of plaintiff’s attorneys for reasonable fees, and the residue will be paid to his regular guardian.

The next friend, as such, has no legal . right to receive any part of the recovery. Cody v. Roane Iron Co., 105 Tenn., 515.