Butler v. Fuller

Appellants seek a reversal of the decree of the court below only upon the question of the excessiveness of the fee allowed for complainants’ solicitor. It is insisted that, while the evidence of the attorneys testifying in the cause is without dispute, the fee allowed was a reasonable and proper sum as customarily charged for services of such nature, yet this was not binding upon the court, citing Lee v. Lomax, 219 Ill. 218, 76 N. E. 377; Dinkelspiel v. Pons, 119 La. 236, 43 South. 1018; Lilly v. Robinson, 106 Ark. 571, 153 S. W. 820, and a vigorous attack is made in argument here presented upon the amount of the fee upon the ground of excessiveness.

[1] That the services of counsel for complainants were for the benefit of the common estate, and properly payable out of the funds *274 from the proceeds of sale under the provisions of section 3010 of the Code of 1907, is not questioned, but only the amount thereof as being excessive. As said by this court in Bidwell v. Johnson, 191 Ala. 195, 67 South. 985, the trial court should exercise the greatest caution in fixing allowance of attorney’s fees in matters of this character, that no injustice be done; but at the same time the wording of the statute has clearly indicated that much must be left to sound judicial discretion.

[2] We may concede for the purpose of this case much of the argument of counsel for appellants, and that neither this court nor the court below will be necessarily bound by the opinion evidence presented in the cause; yet we are not persuaded that under the circumstances here presented the decree should be disturbed. The witnesses were examined in regular form, after due notice given counsel for respondents, and the testimony regularly taken and proof made without dispute as to the proper allowance to be paid the solicitor for complainants for his services in the cause. Respondents did not question this proof at that time or subsequently, offering no testimony to the contrary, and when the final decree was rendered recognizing this amount as a proper charge for solicitor’s fees, no objection seems to have been made thereto, or attempt to have a reconsideration of that question by the court. A sale of the property was had under the decree. The report of the register was confirmed and the proceeds distributed before any objections were filed by respondents to the allowance of this fee as excessive. The objections filed do not appear to have been brought to the attention of the court, and were subsequently withdrawn. All the parties to this cause were sui juris; the interest of no minor being involved. The proceedings in the cause as above outlined clearly indicated to the trial court that if the amount of compensation to ¡be allowed the solicitor for complainants had not been agreed upon, it was at least acquiesced in and considered unobjectionable.

In reviewing the ' trial court upon this question of fact, a matter in which much discretion was vested in the court, this court should also prudently exercise a degree of discretion; and, while we do not wish to be considered as having approved the amount allowed in this particular ease as upon an original consideration thereof, yet under the circumstances shown above we are of the opinion the decree in this respect should not now be disturbed, and the same will therefore be accordingly affirmed.

Affirmed.