Noel v. Noel

221 S.W.2d 627, 310 Ky. 655, 1949 Ky. LEXIS 989

Opinion

Opinion op the Court by

Yan Sant, Commissioner

Affirming,

This is the fifth appeal within twenty months from judgments entered in actions between the parties instituted in the Clark, Larue, and Jefferson Circuit Courts. A history of the litigation may be found in the former appeals all of which are styled Noel v. Noel, and each of which respectively is published in: 307 Ky. 122, 210 S. W. 2d 137, (Clark County); 307 Ky. 128, 210 S. W. 2d 140, (Larue County); 307 Ky. 132, 210 S. W. 2d 142, (Jefferson County); and, — Ky. —, — S. W. 2d —, (Larue County). The judgment appealed from the Jefferson Circuit Court, supra (307 Ky. 132, 210 S. W .2d 144), was reversed on the cross appeal, “with directions that a supplemental judgment be entered fixing a reasonable fee for appellee’s attorneys of record and adjudging that it be paid by appellant.”

On return of the case these directions were followed, resulting in a judgment in favor of appellees, Honorable Robert Hubbard and Honorable Rodney Haggard, attorneys for appellee, Hattie Baber Noel, in the sum of $500. The reasonableness of the amount of the fee is the only question before us on this appeal.

Appellees, on behalf of their client, have successfully defended this action upon every point and from every aspect. The action plainly was an endeavor on the part of appellant to bypass the judgments of the Clark and Larue Circuit Courts and to have determined in his favor matters which had been adjudicated, or which should have been adjudicated, in one or the other of those actions. Not only was it necessary for Messrs. Hubbard and Haggard to sustain tbeir plea in abatement, defense of res adjudicata, plea to tbe jurisdiction of the Court, and tbeir contention that appellant was legally liable for tbe payment of tbeir fee, but they were also required to prepare tbeir defense in respect to tbe merits of tbe case should tbe Court overrule tbe special defenses. After succeeding in tbe Lower Court, it was necessary for them to respond on behalf of tbeir client and themselves to tbe appeal filed in this Court, which they did successfully and in pursuance of which they filed an exhaustive brief. On return of tbe case they prepared affidavits in support of tbeir contention that tbe amount allowed was a reasonable attorney’s fee and now are required to uphold that contention in this Court. Appellee Hubbard has filed bis affidavit setting forth tbe steps taken and work done by him and bis associate as a basis for tbe amount allowed, and, in support of bis contention, has filed tbe affidavits of Honorable Edward A. Dodd and Honorable Brent C. Over-street, highly respected and well known attorneys of Louisville. The former stated that in bis opinion a fee in tbe sum of not less than $500 nor more than $750 would be reasonable, and tbe latter placed tbe minimum at $600 and tbe maximum at $750. Tbe only counter affidavit filed is that of appellant himself, whoi is not a lawyer. This affidavit amounts to no more than a claim that be should not be required to pay any fee to bis wife’s attorneys, but which matter was determined by, and became the law of tbe case upon, this Court’s decision on tbe former appeal.

We think tbe allowance to have been extremely liberal, but it is supported by tbe affidavits of three attorneys and tbe judgment of tbe Chancellor. Appellant has failed to secure, or at least has failed to file, any affidavit expressing an opinion that tbe fee contended for and allowed is excessive. Under tbe circumstances we are constrained to uphold tbe award made by tbe Chancellor.

Tbe judgment is affirmed.