Opinion
Docket No. 29, Calendar No. 34,043.
Submitted January 10, 1929.
Decided March 29, 1929.
Appeal from Wayne; Marschner (Adolph F.), J. Submitted January 10, 1929. (Docket No. 29, Calendar No. 34,043.) Decided March 29, 1929.
Separate petitions of Fred H. Aldrich, attorney, and Clarence E. Kephart, receiver, for compensation for services. Plaintiff appeals from orders allowing such fees. Affirmed as to Aldrich. Reversed as to Kephart.
MacKay, Wiley, Streeter, Smith Tucker, for appellant.
Thomas A.E. Weadock, for appellees.
Plaintiff appealed from allowance of attorney's fees to Fred H. Aldrich, and of receiver's fees to Clarence Kephart, in connection with the case of Horvath v. Vasvary, heard in Wayne circuit court, in chancery, appealed to this court and reported in 238 Mich. 354.
Claim of Fred H. Aldrich. In August, 1923, plaintiff retained this petitioner and he brought the suit for her. Some two years later she became dissatisfied, and, without paying or securing his fees or agreeing on the amount, filed petition for substitution of attorneys, which was granted by an order of the court on November 12, 1925, ordering also that —
"a lien remain on and be charged to whatever property rights plaintiff may attain to or whatever moneys she may receive as a result of this suit * * * for the undetermined value of his services in this case."
No appeal was taken from this order. After final decree on appeal, Mr. Aldrich filed petition for determination of his fees and enforcement of lien. By order of June 25, 1928, after hearing, the fees were fixed by the court at $1,400 and declared to be a lien substantially as in the prior order. No decree of foreclosure of lien was made, but later the court ordered ordinary execution issued against Mrs. Horvath. The present appeal is from the order of June 25th.
On ordering substitution of attorneys, the court has the power to impose terms that the attorney's fees be paid or secured to him, and to determine the amount in a summary manner. 6 C. J. pp. 679, 680; 2 R. C. L. p. 962; Lanagan v. Wayne Circuit Judge, 170 Mich. 435. The orders here made were in furtherance of that power. The first order declared the conditions of substitution. As no appeal was taken from it, it was not open to later attack. The power to determine the amount of fees on substitution, as well as the establishment of a lien by the first order, gave the court jurisdiction to make the order appealed from.
Nor did the decree of this court in the main case divest the circuit court of jurisdiction over this controversy. The issue here was no part of the main case. Its decision rested upon the power of the court to order terms on substitution and was not dependent upon the status or jurisdiction of the main case.
Complaint is made that the award was excessive. The testimony was undisputed that the value of the services rendered was greater than the amount allowed. While this court has discretion in reviewing an allowance of attorney's fees on substitution, a complaining party should present evidence of the worth of the work, its extent, character, or other basis to justify our substituting our own judgment of the proper award for that of the chancellor. No such evidence was in the record here to impeach the undisputed testimony of the value of petitioner's services, and we cannot say the allowance was excessive.
The order is affirmed, with costs.
Claim of Clarence E. Kephart. On March 22, 1924, Kephart was appointed receiver. On July 23, 1925, a petition was filed for his removal as receiver for neglect of duty. No formal order of removal appeared in the record, but in the order allowing him compensation, which was drafted by his attorney, it was recited that he was removed on November 24, 1925. He took into his possession no moneys, goods, or property, and made no report as receiver. At the hearing of Aldrich's claim for fees, Kephart testified that he had no claim against Mrs. Horvath. He filed this petition after the allowance of the Aldrich claim, and was awarded $500. No testimony was taken of the nature or character of his services. 34 Cyc. p. 473. The record showed nothing tangible before the court upon which to base the award. See, also, High on Receivers (4th Ed.), § 796.
The order is reversed, with costs.
NORTH, C.J., and FELLOWS, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred.