Wade v. Kay

97 So. 129, 210 Ala. 122, 1923 Ala. LEXIS 146

• Court: Supreme Court of Alabama
• Decided: June 30, 1923
• Docket: 6 Div. 905.
• Status: Published

Opinion

SOMERVILLE, J.

Section 3011 of the Code gives a lien to attorneys on “suits, judgments, and decrees for money,” for services rendered in reference thereto. Though the- lien is given on suits as well as judgments and decrees it is clear that there can be no enforcement of such a lien until the suit has been prosecuted to judgment.

The petition here exhibited is but an appéndage to the main proceeding — the administration of an estate; and though it does not allege that a decree had been rendered in that proceeding allotting to petitioner’s client what she was due to receive from the estate, the trial court had before it the entire record in the case, and was bound to know that such a decree had, in fact, been rendered, and was bound to decree upon the demurrer to this petition in the light of that knowledge.

This court knows of the existence and the terms of that decree by the inspection of its own records in the case of Blount County Bk., as Adm’r of the Estate of Wade v. Kay (Ala. Sup.) 95 South. 297, 1 involving this same administration wherein the final decree of the administering court is pertinently set forth. Ala. City, etc., Co. v. Bates, 155 Ala. 347, 46 South. 776.

The decree directs the administrator to pay:

“A. All costs and expenses of the administration of said estate, together with all legal liabilities, * * * together with $2,000, to be paid to Mrs. C. E. Wade [the respondent herein] in lieu of the homestead, and to Mrs. C. E. Wade $100, balance due her on her personal property exemptions, and together with $250, * * * to refund her for monies paid by her on debts of the decedent.”

The decree also gives to Mrs. Wade a distributive share in the balance of the estate.

Courts of equity have a general jurisdiction for the enforcement of common-law liens, and also of statutory liens when the statute does not otherwise expressly provide for their enforcement. Evans v. Silvey & Co., 144 Ala. 398, 42 South. 63; Wynn v. Tallapoosa County Bk., 168 Ala. 469, 53 South. 228. Moreover, section 4829 of the Code provides that any lien may be enforced in equity.

The petition exhibited a valid lien enforceable in equity, and was not subject to any of the grounds of demurrer assigned. It results that the decree overruling the demurrer is free from error, and must be affirmed.

Affirmed.

ANDERSON, C. J., and MeCLELLAN and THOMAS, JJ., concur.

1 209 Ala. 74.