Summary
recognizing that the holding in Stone II that "not even the legislature could deprive one of vested rights under a final judgment of the trial court, even though an appeal therefrom was then pending ...."
Summary of this case from Panola Cnty. Tax Assessor v. Oak Inv. Co.Opinion
May 9, 1949.
1. Partition — attorney's fee, when proper.
Where the allegations of the bill of complaint in a partition suit as to the ownership of the land by the several tenants in common named either as complainants or as defendants were not controverted and the right of the complainants to have the land sold for partition of the proceeds was not contested, the allowance of an attorney's fee to complainants' attorneys as a common charge against the entire proceeds of the sale was proper, although as an incidental feature the defendants claimed rents, and the complainants asked for expenditures made for repairs and taxes, neither of which claims were allowed.
2. Partition — attorney's fee — allowance in final decree of confirmation.
The allowance of attorney's fees in a partition suit is properly ordered in the final decree of confirmation, and until such time is within the control of the court, and such an allowance may then be made although the court had orally announced when the interlocutory order of sale was entered that no attorney's fee would be considered; and moreover had the chancellor disallowed the fee in the final decree of confirmation, the attorney would have been entitled to an appeal therefrom.
3. Decrees — correction of — vested rights.
When in the motion to confirm the sale in a partition suit, the matter of the allowance of an attorney's fee was fully discussed with the chancellor and in the final decree, from which no appeal was taken, a proper provision was made, with the full knowledge of the chancellor, for the payment of an attorney's fee out of the proceeds, the fact that the chancellor had presently forgotten his previous oral announcement that he would not allow an attorney's fee, which oral announcement the attorney had not heard because of his deafness, there was no authority in the court at a later term to modify the decree as to such allowance, there being no fraud in its procurement and no clerical or other correctable error in it.
4. Partition — attorney's fee — decree allowing fully executed — vested rights.
When a final decree in a partition suit has allowed an attorney's fee and the decree has been fully executed without any appeal therefrom and there was no fraud in its procurement or any clerical or other correctable error therein, the attorney had therein a vested right and the decree must stand as rendered.
Headnotes as revised by McGehee, C.J.
APPEAL from the chancery court of Carroll County, J.K. GILLIS, Chancellor.
H.T. Holmes, Rupert Ringold, J.E. Aldridge and J.D. Guyton, for appellant.
In the first petition the attorneys for the defendants in the partition suit alone instituted it; and the court sustained respondent's demurrer. In the second petition, the one now before the court on appeal, it is instituted by the defendants in the partition suit by Mr. Black as their attorney. Not one single one of these defendants appeared at this trial of Mr. Conger as a witness. Mr. Black gave the case no further attention after the interlocutory decre was rendered. His alleged confidence in Mr. Conger seems to have been so great that he willingly and cheerfully left it to Conger to do all the work of an attorney in this case thereafter. Not a scintilla of proof, or evidence of any kind, was presented at the trial of Conger by the petitioners which even tends to show that Conger was guilty of any sort of fraud, deceit, or misrepresentation to the court or to any party interested.
On the contrary, Mr. Conger's testimony that he did not hear the chancellor say in his opinion at the partition suit trial that no attorney fees would be allowed either party, stands uncontradicted. The burden of proof is on the petitioners in a high degree; but they utterly failed to meet this burden. The respondent proves the contrary.
This brings us to the last ground upon which the decree might be predicated, namely, that the trial court, after being informed of its ruling on the partition suit to the effect that no attorney fees would be allowed to either party as this was a controverted partition suit, as is reflected in Exhibit "1" to the petition, on its own motion, or at the instance and request of the petitioners, by virtue of its inherent power, had the right to order Conger to refund $172.67 to the commissioner for distribution among the defendants in the partition suit who are the petitioners in the "proceeding" at bar and to correct and modify the confirmation decree accordingly.
Was it error to allow Conger $500.00 as a fee as a common charge against all interests? Mr. Conger thought not. He testified that he drew three different decrees for consideration at the confirmation hearing, as a means of expediting the hearing and decree to be rendered. He carried with him Hoffman v. Smith, 61 Miss. 544 (1884), wherein the court held that Section 2577, Miss. Code 1880, now Section 975, Miss. Code 1942, authorizes the court in its discretion to be exercised with caution to allow an attorney fee to complainant's attorney in partition suits. On appeal in this case the court reversed an allowance of such fee on the facts of that case. But, referring to Kelly v. Miles, No. 4308, Minute Book "G", page 144, (not published), wherein such fee was allowed notwithstanding defendants were represented by their own attorney, this court said: "The discretion it confers should be employed to make the common property bear the burden of a common benefit enuring to all the owners who had no just occasion to have their own counsel in the case. Merely because the defendant engaged his own solicitor the court should not deny a fee to the solicitor for complainants, but because the defendant required a solicitor from the exigency of his cause and employed one he should not be required to pay his adversary. In each case it is for the court on considering all the facts to determine as to such allowance."
Mr. Conger testified that he did not show this case to the chancellor at the confirmation hearing, but the fact the interlocutory decree balanced all equities and decreed a sale rather than division in kind was discussed, and the chancellor seemed better informed as to the law on allowing attorney's fees in such cases than he was, and commented on the fact that some of the defendants testified at the partition hearing and said they wanted money and not land. Conger obtained at this hearing on the partition all he asked for in his petition for partition — a sale and division of the proceeds among all the parties in interest just as his petition specified the interest of each party to be. He further testified that he did all of the work thereafter, writing the commissioner's bond, the notice of sale, attended the sale and solicited competition, wrote the report of the commissioner, invited Mr. Black, one of the attorneys for defendants, to go with him to the confirmation hearing, attended this hearing alone, prepared the confirmation decree with distribution sheet, filed the decree on Monday after it was signed on Saturday, received his fee on Thursday, and not one single complainant or defendant ever complained about the fee allowed him. Certainly all this work done by Conger after the interlocutory decree was rendered was for the common benefit of all the parties interested, defendants as well as complainants. None of his work, from the beginning to the end, was against the interests, as adjudicated by the court, of any defendant. Under these circumstances, the court did not abuse its discretion in allowing a fee to Conger as a common charge. Were there such abuse of discretion, it could be corrected only by appeal.
The trial court seems to have endeavored to follow the rule announced by this court in Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845 (1911); Rowell Co. v. Sandifer, 129 Miss. 167, 91 So. 899 (1922). Both of these cases hold that the trial court has inherent power to strike out a judgment erroneously entered by mistake, and substitute for it the wholly different judgment actually rendered by the court. And both hold that parol evidence is admissible to prove the judgment entered was not the judgment actually rendered. We do not controvert this principle of law. We do say that in the case at bar there was no judgment rendered by the court denying Mr. Conger the right to a fee chargeable against the entire estate. The "opinion" of the court, dictated to the court reporter on the trial of the partition suit, was not a judgment. The only judgment then rendered is embodied in the interlocutory decree O.K.'d by Mr. Black as attorney for the defendants and by Mr. Conger as attorney for the complainants. This judgment does not adjudicate anything about attorney fees. When the final decree was rendered (the decree of confirmation), Mr. Conger was not only allowed a fee of $500.00 chargeable out of the entire estate, but the reason for said allowance is fully stated in this decree, thus showing that the chancellor gave this question due and careful consideration. The interlocutory "opinion" of the chancellor in no way bound him to follow it; for until the final decree was rendered, this matter of allowing or not allowing a fee to the complainants' solicitor was locked in his bosom.
In Wilson v. Town of Handsboro, supra, the erroneous judgment corrected was entered by the clerk overruling a demurrer, whereas in truth and in fact the demurrer was sustained. A plea of former jeopardy was filed by the defendant. To this plea the town demurred. The court actually sustained this demurrer, and defendant was tried and convicted. The clerk entered the order as overruling the demurrer. At a subsequent term the court entered an order showing this demurrer sustained. On appeal it was held that the order entered at a subsequent term showing this demurrer as sustained, rather than overruled, was proper. To the same effect is Powers v. State, 83 Miss. 691, 36 So. 6 (1904).
Let us bear in mind that the "opinion" of the chancellor dictated to the court reporter at the partition suit trial, to the effect that no attorney fees would be allowed either party, was the basis of the interlocutory degree — not the final decree. The petition against Conger in the case at bar does not seek to modify the interlocutory decree, and no effort is made to do so. Mr. Black evidently avoided any attempt to modify this interlocutory decree, so as to make it conform to the "opinion" of the chancellor, because he well knew that his O.K.'ing this interlocutory decree would estop him. Mr. Black testifies that he went over this interlocutory decree with Mr. Conger very carefully, and then O.K.'d it. The chancellor signed it after Mr. Black O.K.'d it, and after Mr. Conger O.K.'d it. In it nothing whatever is said about attorney fees. The failure of Mr. Black to have inserted in the interlocutory decree (Mr. Conger was not at fault in not doing so because he did not hear this part of the chancellor's opinion, and on the present hearing the chancellor so finds) a provision that no attorney fees would be allowed either party, left the matter of allowing or not allowing an attorney's fee to the solicitor for the complainants wide open for determination at the confirmation hearing. Then when the confirmation hearing was had, we look to the recitals in this decree for what was actually considered, and on consideration ordered. We find this (Record, page 42): "Further, it is ordered that said commissioner do pay to J.W. Conger, attorney for the complainants, the sum of $500.00, hereby allowed and fixed as a common charge upon all the interests of the parties, having been for the good of all, for instituting and conducting the proceedings in this cause, in view of all of the facts of the case, and the testimony of the defendants who testified that they desired a sale of the property and did not resist a sale, and the chancellor is fully advised in the premises, and exercising his discretion with caution, doth allow said attorney's fees as a common charge on the fund."
So it appears conclusively that the chancellor at the confirmation hearing had in mind clearly the facts developed at the partition trial, and had clearly in mind the the statute — Miss. Code 1942, Sec. 975 — and the Code annotations thereunder, and that it was there firmly and for the first time adjudicated with caution that the solicitor for the complainants was entitled to a fee of $500.00 as a common charge against all the interests of the parties. Under the cases hereinabove cited, even though the chancellor may have been in error in allowing this fee to Mr. Conger, nevertheless, since it so clearly appears that the chancellor had in mind the facts of the case, and also the law of the case, this final decree is not subject to modification by the "proceeding" in the case at bar — the sole and only remedy is by appeal, in which event the Supreme Court would have before it the record facts at the partition hearing, and could reverse the trial court if it were in error. In this sort of "proceeding" final decrees cannot be modified for erroneous conclusions as to either the law or the facts, after the term of court is ended, where it appears clearly, as it does here, that the chancellor had in mind the facts. Maurice R. Black, J.C. Neill, and Satterfield, Ewing Hedgepeth, for appellees.
We call the attention of the court to the finding of the chancellor in the decree rendered upon the petition now being considered, adjudicating that J.W. Conger was not entitled to any fee from the defendants in the original cause, the same being a controverted matter, and that the lower court had the inherent power to correct its own decrees and to compel the performance of the same as modified and corrected as against a defendant in the petition and an officer of the court.
Upon this appeal the authority of the chancery court to correct its own decrees is questioned by the appellant.
The chancery court had inherent and full power to correct the erroneous decree entered by it and to require compliance therewith. Appellees submit that the case of Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845, Ann. Cas. 1913 E, 345, is directly in point as to the inherent power of a court to make its judgments speak the truth and to make them recite what the court intended them to include.
In Oliver Finnie Gro. v. Bodenheimer, et al, 77 Miss. 415, 27 So. 613, the chancery court declared fraudulent a sale of goods, but the decree failed to provide for sale of same, or adjudicate the debt owing by the defendant debtor, and the Supreme Court, upon appeal, held: "It seems apparent by the record that, by inadvertence, several matters of import in the case and necessary to its complete adjudication, and which should have been embodied in the decree were omitted; and in such case we think the rules of chancery practice authorize the court in which the cause is depending, upon application by petition or motion, to rectify the error, and to embody the omitted matter in the final adjudication by a supplemental decree."
In the case of Rowell v. Sandifer, 91 So. 899, 129 Miss. 167, the question arose of whether or not the chancery court had the power to correct a decree where one of the defendants, being the bonding company involved in that case, had inadvertently been omitted from the decree, and in determining that such correction could be made the court held as follows: "The power of every court of record to correct a judgment rendered at a former term, so as to strike out a judgment erroneously entered by mistake, and substitute for it the wholly different judgment actually rendered by the court, is settled by numerous cases in this state and by the authorities generally. (Here the case of Wilson v. Handsboro, 99 Miss. 252, was cited with approval). The testimony upon the hearing of the petition to correct the decree in this case was sufficient to support the finding of the chancellor that, by mistake, the judgment actually rendered had not been entered, and therefore we do not think it was error to enter the corrected judgment or decree." See also Cotton v. McGehee, 54 Miss. 621 and Mitchell v. State, 179 Miss. 258, 176 So. 743, 749.
It will be noted in the case at bar that in addition to the fact that the interlocutory decree denied all rights of any of the parties to any sort of recovery against the other, the opinion of the court delivered in open court and taken down by the court reporter as a part of the proceedings of the cause affirmatively disallowed and denied any such attorney's fee as that which was received by J.W. Conger. The finding of the court upon the facts submitted is that it was an inadvertence or error on his part, and that the final decree in this cause did not speak the true facts as found by the court nor embody the true decree as intended by the court. The right of the court, under such circumstances, to correct its judgment is clearly stated in 14 Am. Jur. pages 352 and 353, as follows, to-wit: "Sec. 142. Amendment of Record. — The power to amend its records, to correct mistakes of the clerk or other officers of the court or inadvertencies of counsel, or to supply defects or omissions in the record, even after the lapse of the term, is inherent in courts of justice. A court may amend its record in the matter of clerical misprisions so as to make it conform to the truth even after the term has expired and error brought; and where a court has amended omissions in its records which occurred at a previous term, the record thus amended stands as if it had never been defective or as if all the entries had been made and completed at the previous term. . . ."
The court has found that counsel did not call to his attention the opinion rendered at the final hearing that attorney's fees would not be adjudicated against the defendants, and that if such fact had been called to his attention or if he had recollected the same, the final decree would have spoken the truth and the true finding of the court. While no actual fraud was present there is a mistake of fact and an error arising from the negligence of counsel and the inadvertence of the court. This situation existed in the case of United States v. Williams 67 Fed. 384, and the holding of that case is directly in point in the case now before the court.
The appellant J.W. Conger is a practicing attorney at law of Winona, Mississippi. He represented a number of complainants in filing and conducting a partition proceeding in the Chancery Court of Carroll County, which resulted in a decree for the sale of approximately 350 acres of land for division of the proceeds among the complainants and defendants as tenants in common of the land. There were approximately 25 parties to the suit who held undivided interests in the land after some of the original tenants in common had conveyed their respective shares. The defendants to the proceeding filed an answer through their own attorneys but they neither challenged the alleged ownership of the land by the several tenants in common as stated in the bill of complaint, nor did they contest the alleged right of partition. The defendants were willing for the land to be sold for division of proceeds as prayed for by the complainants, but claimed rents, etc., from the complainants who had been in possession of the land but who had made expenditures for repairs and taxes. None of the alleged equities of any of the complainants and defendants as against each other were allowed.
At the conclusion of the hearing in the partition proceeding, which was conducted and concluded on the merits during an afternoon, the Chancellor rendered an oral opinion in accordance with the view above stated, and to the further effect that the land was "not susceptible of division in kind, and that it is to the best interest of all of the parties that same be sold and the proceeds derived therefrom divided among the owners thereof as their respective interests appear, and as set out in the complainants' bill and agreed to by the defendants."
The oral opinion above referred to, which was taken in shorthand by the court reporter, but not transcribed and filed in court in that proceeding, concluded with the following statement:
"The court holds that this is a controverted matter, and that it will not adjudicate any attorneys fee to either complainant or defendant, believing it is the business of each of the parties to pay their own attorneys."
At the hearing in the case now before us the trial court expressly found, in the decree here appealed from, that the appellant is hard of hearing and that he did not hear the oral statement of the Chancellor last above quoted.
The appellant thereafter prepared the interlocutory decree for the sale of the land, which adjudicated the respective undivided fractional interests of the several parties to the proceeding, appointed the Clerk as a Commissioner to make the sale on the first Monday of August, 1947, and directed him to report the same for confirmation in vacation at the office of the Chancellor in the City of Philadelphia, Mississippi, at noon, on Saturday, August 16, 1947. No reference was made therein either to the allowance or disallowance of attorney's fees. This decree was submitted to one of the attorneys of the defendants and was carefully considered by him "paragraph by paragraph," according to his testimony, and no objection was made in regard thereto. That is to say, he O.K.'d the same as a compliance with the holding of the Court as to form upon the theory that it was unnecessary for such holding to be recited therein.
After preparing this interlocutory degree the appellant prepared all further proceedings in the case, including the notice of sale by the Commissioner, the report of the Commissioner for confirmation, the decree of confirmation, the calculation of the net amount to be paid by the Commissioner to each of the respective tenants in common, and the Commissioner's deed to the purchaser, after having induced bidders to attend the sale, at which he was personally present, and where the property was sold for $6,600 in cash, a fair and satisfactory price to all parties concerned.
In the decree confirming the sale rendered at the time and place fixed by the interlocutory decree, the Chancellor ordered that the Commissioner pay the appellant J.W. Conger, attorney for the complainants, the sum of $500, "allowed and fixed as a common charge upon all the interests of the parties, (the legal services) having been for the good of all, for instituting and conducting the proceedings in this cause, in view of all the facts of the case, and the testimony of the defendants who testified that they desired the sale of the property and did not resist the sale, . . ."
The allowance of this fee was then and there discussed between the Chancellor and the appellant as to the proper amount to be paid for the legal services rendered, without any effort on the part of the attorney to mislead the Chancellor in the matter, since he had the right to assume that he would be allowed a reasonable fee for his services which had been rendered for the benefit of all of the parties to partition proceeding, but it appears that the Chancellor had for the time being overlooked or forgotten his oral pronouncement from the bench during the regular term of the court to the effect that he would not adjudicate the allowance of an attorney's fee. (Hn 1) And at the hearing in the instant proceeding, filed by the attorneys for the defendants in the partition suit to require a refund of the fee to the Clerk as Commissioner, the court further adjudicated as a fact, and we think properly so, that the appellant had been guilty of no fraud in connection with obtaining the allowance of such fee. Moreover, we are of the opinion that the allowance of the fee was eminently correct and proper as a common charge against the entire proceeds of the sale, since the allegation of the bill of complaint in that suit as to the ownership of the land by several tenants in common named either as complainants or defendants was not controverted and the right of the complainants to have the land sold for a partition of the proceeds was not contested.
On the following Monday after the rendition of the confirmation decree the appellant filed the same with the Chancery Clerk and on the next day one of the attorneys for the defendants saw the decree and became thereby advised of this allowance of an attorney's fee to the appellant. This was before a distribution of the proceeds of the sale among the several tenants in common was made on the following Thursday after the confirmation was had on Saturday, August 16, 1947. The distribution of the proceeds of the sale was therefore made at a time when the attorneys of both the complainants and the defendants knew that the $500 fee to the appellant had been allowed and was being deducted therefrom, and no request was made of the Chancellor or the Commissioner to hold up such distribution, although complaint was soon made to the Chancellor in regard to the allowance.
The present proceeding, charging the appellant with having perpetrated a fraud on the Chancery Court, on his own clients, on the defendants in the partition proceeding, and of being guilty of conduct unbecoming an attorney, as well as contempt of court, and also seeking to have disciplinary action taken against him by the court, was filed on December 3, 1947, returnable to the regular January 1948 term. A demurrer to the petition, which thus sought a citation for contempt, a mandatory order requiring the appellent Conger to refund the $500 fee to the Commissioner, and prayed for disciplinary action against him, having been sustained, an amended petition in that behalf was filed and made returnable to the June, 1948, term of the court, and it alleged among other things that the appellant was in the courtroom and heard the oral opinion of the Chancellor when rendered prior to the preparation of the interlocutory decree for the sale of the land, and that he knew that the Chancellor had announced that he would not adjudicate any attorney's fees to either complainant or defendant. However, on the hearing of the present proceeding the Chancellor expressly found as aforesaid that the appellant is hard of hearing and that he did not hear and understand the above mentioned announcement of the court to the effect that no attorneys fee would be adjudicated and that he was guilty of no fraud whatever in connection with the preparation and presentation of the decree confirming the sale wherein the allowance of the attorneys fee was provided for; but he, nevertheless, ordered that the appellant be allowed to retain only $327.33 of the fee allowed him and that he refund to the Clerk as Commissioner the sum of $172.67 for distribution among the defendants in the partition suit.
(Hn 2) Thus it will be seen that this is not a case of where a Chancellor signed a decree without knowing that an attorney's fee was being allowed therein, but is a case where the allowance was specifically discussed between the Chancellor and the attorney and where the decree was signed with full knowledge on the part of the Chancellor that it contained the provision making such allowance. The order for a refund of a part thereof made in the present proceeding is based on the aforementioned ground that the Chancellor had momentarily overlooked the fact that he had stated in an oral opinion at the former term of court that he did not intend to allow an attorney's fee, but which intention and purpose was never thereafter set forth in any decree on the minutes or in any writing filed in the cause.
The final decree confirming the sale of the land and ordering the distribution of the proceeds was not appealed from, and the same had been fully executed. Moreover, the petition herein is not predicated upon any alleged right to a modification of the terms of this final decree. It is neither alleged therein that the petitioners are entitled to have the decree corrected nor is there a prayer for a modification of its terms. It merely seeks to have the appellant punished for contempt of court and to have him mandatorily enjoined to refund the fee to the Commissioner which was paid by him to the appellant pursuant to the final decree of the Court in confirming the sale and ordering the distribution of the proceeds of the sale of the lands.
It is not contended that the services of the appellant were not amply worth the amount of the fee allowed, and this record discloses that the defendants, as well as the complainants, received the benefit of the necessary legal services rendered by the appellant in filing and conducting the partition proceedings from the beginning to the end.
(Hn 3) Since there was no clerical or other error in the final decree rendered on August 16, 1947, which the trial court would have been authorized to correct at some subsequent term of the court, we are of the opinion that in the absence of fraud in its procurement, clerical or other correctable error, the court was without power to disturb the vested right of the appellant to the fee adjudicated in his favor. If the defendants were dissatisfied with such allowance, their remedy was by an appeal from the said final decree in order that it might be determined whether or not the allowance was proper, equitable and just, even though the trial court had previously announced its intention in an oral opinion not to allow the same, and the court had the right to alter its position in regard thereto at any time before final decree, and especially in view of the considerable amount of legal services rendered by the complainants' attorney alone in the further conduct of the partition proceeding subsequent to the making of such oral announcement at the previous term of the court. Moreover, if the Chancellor had disallowed the fee in the final decree of confirmation of the sale, the appellant herein would have been entitled to an appeal within the time allowed by law, which has now long since expired.
(Hn 4) This Court held on suggestion of error in the case of Stone v. McKay Plumbing Co., 200 Miss. 792, 26 So.2d 349, 30 So.2d 91, that not even the legislature could deprive one of vested rights under a final judgment of the trial court, even though an appeal therefrom was then pending, whereas in the partition proceeding wherein the fee in question was allowed no appeal was taken, and in the absence of fraud in its procurement or clerical or other correctable error made therein the same must stand as rendered. Moreover, in this instance the decree has been fully executed. It follows that the decree of the trial court in the instant case must be reversed and the petition against the appellant dismissed.
Reversed and decree here for the appellant.