Opinion
No. 39483.
February 21, 1955.
1. Limitation of actions — amended bill — introduced no new cause of action — related back to time of filing original bill.
In suit in chancery by attorney against client for attorney's fee and expenses in connection with certain legal work, for discovery, and for an accounting, wherein demurrer was sustained because bill of complaint did not allege when bill for services was due and most of claim appeared to be barred by limitations, amended bill introduced no new cause of action and stated no new facts as real basis of recovery, but merely made definite allegation as to when complainant was to be paid by defendant and thereby perfected or amplified cause of action set up in original bill, and amended bill related back to commencement of action, and running of statute of limitations was tolled. Sec. 729, Code 1942.
2. Evidence — fees — in other wholly disconnected transactions — properly excluded.
In such suit, Chancellor properly refused to entertain evidence showing what fees had been charged by complainant attorney in other wholly disconnected transactions.
3. Attorney and client — reasonable attorney's fee allowed — supported by evidence.
Allowance by Trial Court of $1,250 attorney's fee for legal work in connection with purchase of 206.83 mineral acres for $35,000 was not exorbitant and unreasonable, and was abundantly supported by the evidence.
4. Appeal — cause of action legal — instead of equitable — no grounds for reversal.
Fact that cause of action was legal instead of equitable presented no ground for reversal of decree of Chancery Court thereon. Sec. 147, Constitution 1890.
Headnotes as approved by Hall, J.
APPEAL from the Chancery Court of Hinds County; L. ARNOLD PYLE, Chancellor.
Bernard W. Chill, Jackson, for appellant.
I. The Court below erred in overruling appellant's demurrer to the amended bill setting forth that the cause of action was barred by the three-year statute of limitations. Box v. Chicago, R.I. P. Ry. Co., 107 Iowa 660, 78 N.W. 694; Clark v. Gulf, M. N.R.R. Co., 132 Miss. 627, 97 So. 185; Cox v. American Freehold Land Mtge. Co. of London, Ltd., 88 Miss. 88, 40 So. 739; Dodds v. Cavett, 133 Miss. 470, 97 So. 813; Illinois Cent. R.R. Co. v. Wales, 177 Miss. 875, 171 So. 536, 540; Sec. 729, Code 1942; 37 C.J. 1078.
II. The Court below erred in finding for the complainant. Canon of Ethics, Mississippi State Bar, Secs. 12, 14.
A. The Court erred in not permitting the defendant below, appellant here, from introducing evidence to show what complainant (appellee) had charged the appellant-defendant for similar services previously performed for appellant by appellee. Board of Levee Comrs. Yazoo-Miss. Delta v. Dillard, 76 Miss. 641, 25 So. 292; Central Lumber Co. v. Porter, 139 Miss. 66, 103 So. 506.
B. The award of the Court was excessive and exorbitant. Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888, 892; Johnson v. Howard, 167 Miss. 475, 141 So. 573, 577; Minimum Fee Schedule, Hinds County Bar Association (ed. 1947), pp. 4-5.
III. The Trial Court erred in not dismissing the amended bill. Carbolineum Wood Preserving Mfg. Co. v. Meyer, 76 Miss. 586, 25 So. 297; Dilworth v. Federal Reserve Bank, 170 Miss. 373, 150 So. 821, 154 So. 535; Galtney Motor Co. v. Federal Reserve Bank, 170 Miss. 594, 150 So. 825; Galyean Brothers v. Federal Reserve Bank, 170 Miss. 594, 150 So. 825; Sec. 147, Constitution 1890.
Roger C. Landrum, Columbus, for appellee.
I. An amendment of a declaration, petition, or complaint which sets up no new cause of action or claim and makes no new demand relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. In re Whittington's Estate, 217 Miss. 457, 64 So.2d 580; 34 Am. Jur. pp. 147, 211, 214; 54 C.J.S. pp. 327, 330.
II. The right of an attorney to file suit for reasonable compensation for services rendered pursuant to employment is too well established to be denied.
III. In determining what is a reasonable attorney's fee or allowance for legal services rendered, many and varied elements or factors are to be considered. Among the principal elements or factors to be considered are the amount and character of the services rendered, the nature, and importance of the litigation or business in which the services were rendered, the degree of responsibility imposed on, or incurred by the attorney, the amount of money or the value of the property affected by the controversy, or involved in the employment, the degree of professional ability, skill, and experience called for and exercised in the performance of the services, and the professional character, qualifications, and standing of the attorney, and also the amount recovered. 7 C.J.S. 1080.
IV. A Chancellor's findings which are sustained by substantial evidence and are not manifestly wrong, cannot be reversed on appeal. Callicott v. State ex rel. Chatham, 210 Miss. 428, 49 So.2d 730; Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775; Rhodes v. Howle, 219 Miss. 16, 67 So.2d 877; Savell v. Savell (Miss.), 49 So.2d 726.
V. The award of the Chancellor allowing $1,250 for the services rendered was reasonable.
VI. No judgment or decree in any Chancery or Circuit Court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or of common-law jurisdiction. Carter v. Witherspoon, 156 Miss. 597, 126 So. 388; Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447; Sec. 147, Constitution 1890.
This suit was commenced by bill in chancery for recovery of an amount due for an attorney's fee and expenses in connection with certain legal work, and for a discovery and an accounting. The facts found by the chancellor, and abundantly supported by the evidence are that appellee, an attorney at law, was employed by appellant, an oil and gas royalty broker, on or about April 7, 1950, to do all the legal work necessary in connection with the purchase of 206.83 mineral acres in Jefferson Davis County, Mississippi, for a price of $35,000.00 from Mrs. Ernie Milloy Calhoun and husband and to take the title thereto in appellee's name; that pursuant to said employment appellee made four trips to Jefferson Davis County, made numerous telephone calls to various points and had actual expenses of $134.00; that he consulted with the agent and attorney for the seller of said minerals, assisted in preparing and securing the execution of all the necessary agreements and contracts in connection with said sale, assisted in settling Federal and State inheritance tax matters in connection with the estate from whom the seller inherited the minerals, prepared and executed a note and deed of trust from appellant and appellee to Deposit Guaranty Bank Trust Company evidencing and securing an indebtedness of $25,000.00, the same being used as a portion of the purchase price of said minerals, examined and certified the title to said mineral acreage, prepared and executed fifteen mineral deeds to appellant and his clients pursuant to directions of appellant, and rendered other valuable legal services in connection with said matter and performed his contract of employment as ordered and directed by appellant in an efficient and competent manner. There was no advance agreement as to the amount of fee for the services rendered and the chancellor found that a reasonable fee is $1,250.00 plus $134.00 actual expenses and awarded judgment accordingly. Hence this appeal.
The mineral acreage in question was under six different producing gas units situated in the Gwinville Gas Field, comprising approximately 1900 acres, title to which was examined and certified by appellee. The first mineral deeds in connection with the matter were executed on April 26, 1950, and the last on May 3, 1950, and the record shows without dispute that no fee was due until May 3, 1950.
(Hn 1) The suit was filed on April 30, 1953, and alleged the several services rendered from April 7 to May 3, 1950, and a demurrer was sustained because the suit did not allege when the bill for services was due and most of the claim appeared to be barred by the three-year statute of limitation. On August 12, 1953, an amended bill was filed wherein it was specifically alleged that no fee was due until completion of the transaction on May 3, 1950. A demurrer was filed wherein it was claimed that the suit was barred because the amendment was not filed until more than three years after the due date of the indebtedness. This demurrer was overruled and the case proceeded to trial. At the close of the evidence for appellee a motion to dismiss the suit on the same ground was overruled, and the action of the court in this respect is the basis of the first assignment of error. The amended bill introduced no new cause of action and stated no new facts as the real basis of recovery. Primarily, it simply made definite the allegation as to when appellee was to be paid, and thereby perfected or amplified the cause of action set up in the original pleading, and related back to the commencement of the action, thereby tolling the running of the statute. 54 C.J.S., Limitation of Actions, Section 280, pages 327-330. In Re Estate of Whittington, Deceased, 217 Miss. 457, 64 So.2d 580.
(Hn 2) What amount would be a reasonable fee for the services rendered was established not only by appellee's testimony but also by that of a disinterested practicing attorney. Appellant offered no witness to dispute this evidence but sought to show what fees had been charged by appellee on other transactions wholly disconnected from this one. The chancellor refused to entertain this type of evidence, and his refusal is the basis of the next assignment. We think the chancellor's ruling was correct and that there is no merit in this contention.
(Hn 3) It is also contended that the fee allowed is exorbitant and unreasonable. It is abundantly supported by the evidence and there is nothing in the record to contradict it. Out of the approximately 400 lawyers in the City of Jackson, appellant produced not one to say that the fee claimed was excessive, and the contention is without merit.
(Hn 4) It is contended finally that this is not an equity suit and that for this reason the lower court erred in not sustaining a motion to dismiss it on this ground. The contention is answered by Section 147 of the Mississippi Constitution. The fact that a cause of action is legal instead of equitable presents no ground for reversing a decree of the Chancery Court thereon. Carter v. Witherspoon, 156 Miss. 597, 126 So. 388; Dinsmore v. Hardison, 111 Miss. 313, 71 So. 567; Metzger v. Joseph, 111 Miss. 385, 71 So. 645.
Affirmed.
McGehee, C.J., and Kyle, Holmes and Gillespie, JJ., concur.