McGraw v. Tillery

59 So. 567, 178 Ala. 253, 1912 Ala. LEXIS 382

Opinion

ANDERSON, J.

The appellees, by their petition, sought the enforcement of their contract; and, whether it was or was not binding upon these appellants, they •could not enforce same, except by an original or supplemental bill. — 3 Mayfield’s Digest, pp. 316, 317. The trial court erred in not sustaining the respondents’ demurrer to the petition.

It may be conceded that the apellants were entitled to a reasonable fee, to be taxed as cost against the respondents, if legally employed to represent them under the terms of section 3010 of the Code of 1907; but the petition did not proceed upon this theory and the trial court cannot be justified upon its finding, or the respondents concluded thereby, because the appellants Avere entitled to a fee under a statute which they were not attempting to invoke. After the court improperly overruled the respondents’ demurrer, they were not bound by the proof as to the reasonableness of the fee to Avhich the petitioners may have been entitled, under the statute, as their petition did not invoke the statute, but relied upon the contract alone, and sought the amount fixed by same.

The decree of the county court is reversed, and the cause is remanded.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.