Opinion
6 Div. 923.
June 30, 1927. Rehearing Denied October 20, 1927.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
J. S. McLendon, of Birmingham, for appellant.
Attorneys have a lien on all properties or money of their clients in their possession, for services rendered with reference thereto. Code 1923, § 6262; Hale v. Tyson, 202 Ala. 107, 79 So. 499. The defense of set-off was not open to complainant in the motions at law. Equity has jurisdiction of a suit to compel a set-off which is not available at law. Oliver v. Holt, 11 Ala. 574, 46 Am. Dec. 228; O'Neal v. Brown, 21 Ala. 482; McTighe v. McLane, 93 Ala. 628, 11 So. 117; 1 Pom. Eq. Jur. (3d Ed.) § 189; Farris v. Houston, 78 Ala. 250; Watson v. Hamilton, 211 Ala. 688, 101 So. 609; Boone v. Byrd, 201 Ala. 562, 78 So. 958; 22 Cyc. 801. The mere fact that complainant collected money for respondents does not deprive him of his right to set off debts owed by them to him. White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A. (N.S.) 568; In re Paschal, 10 Wall. 483, 19 L.Ed. 992. The bill shows ground for an accounting, and has equity. 1 C. J. 621, 622; Hall v. McKeller, 155 Ala. 508, 46 So. 460; Halsted v. Rabb, 8 Port. 63; Kerr v. Camden Steamboat Co., 15 S.C. Eq. 189; Ludlow v. Simond, 2 Caines Cas. (N.Y.) 1, 2 Am. Dec. 291. The bill was erroneously dismissed without opportunity to amend. Coleman v. Butt, 130 Ala. 268, 30 So. 364; Brown v. Mize, 119 Ala. 10, 24 So. 453; Bell v. Montgomery Co., 103 Ala. 275, 15 So. 569; West v. L. N., 137 Ala. 568, 34 So. 852; Blackburn v. Fitzgerald, 130 Ala. 584, 30 So. 568. The only method to question the propriety of the order reinstating the temporary injunction was in the lower court. E. W. R. Co. v. E. Tenn. Co., 75 Ala. 275.
Coleman, Coleman, Spain Stewart, of Birmingham, for appellees.
When an injunction is dissolved by a judge, it can only be reinstated by the judge before whom the case was heard on by a judge of the Supreme Court. Code 1923, § 8312; Coker v. Hughes, 205 Ala. 344, 87 So. 321; Hale v. Worthington, 210 Ala. 544, 98 So. 784. There must be some other grounds than equitable set-off for a party to resort to equity. Gafford v. Proskauer, 59 Ala. 264; Knight v. Drane, 77 Ala. 373; Elliott v. Sibley, 101 Ala. 349, 13 So. 500; Samuels v. Scott, 212 Ala. 679, 103 So. 848; Caldwell v. Caldwell, 166 Ala. 406, 52 So. 323, 139 Am. St. Rep. 48; White v. Wiggins, 32 Ala. 424, Tate v. Evans, 54 Ala. 16; Simmons v. Williams, 27 Ala. 507. The averment that there is a long and disputed account, etc., is insufficient to give equity to the bill. Reilly v. Woolbert, 196 Ala. 191, 72 So. 10; German v. Browne, 137 Ala. 429, 34 So. 985. In order to give the equity court jurisdiction on the ground of presenting a multiplicity of suits, it must appear that there is a community of interest in the subject-matter of the several suits. Roanoke Guano Co. v. Saunders, 173 Ala. 347, 56 So. 198; Hamilton v. Ala. Power Co., 195 Ala. 444, 70 So. 737; Southern Steel Co. v. Hopkins, 174 Ala. 465, 57 So. 11, 40 L.R.A. (N.S.) 464, Ann. Cas. 1914B, 692. In the summary action at law, complainant could set off whatever claim he has for attorney's fee. Code 1923, § 10267; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A. (N.S.) 568; Bush v. Bumgardner, 212 Ala. 456, 102 So. 629. Or could institute independent action to recover. 1 C. J. 1110; 34 Cyc. 758; De Sylva v. Henry, 3 Port. 132. Motion to discharge is proper remedy to raise question of authority of a judge to order an injunction. E. W. R. Co. v. E. Tenn. Co., 75 Ala. 275. The bill is demurrable for misjoinder and multifariousness.
The statute (Code of 1923, § 6262) gives attorneys at law "a lien on all papers and money of their clients in their possession for services rendered them, in reference thereto," and the statute (Code of 1923, § 8935) provides that "any lien may be enforced in the manner provided by statute, if so provided, or in equity." Russell v. Thornton et al., ante, p. 60, 112 So. 347.
While the bill avers that the relation of attorney and client has never existed between the complainant and Jessica B. Cairns, one of the movants for a summary judgment against complainant, and that the money now in his possession was not collected by him in that capacity, facts which would constitute a competent defense to the motion (In re Attorney, 63 How. Prac. [N.Y.] 152), it also avers that the entire sum in his possession, amounting, to $3,402.34, belongs to the other respondent, Truckee Land Company, who is also moving for a summary judgment, for a sum greatly less than is due complainant for services rendered to said land company, and subject to complainant's lien for services rendered.
We are therefore of opinion, taking the facts apparent on the face of the bill, though illy pleaded, it is not subject to the objection that it is wanting in equity, or that there was a misjoinder of parties. The statute gives a court of equity jurisdiction to enforce complainant's lien, and it appears that the respondent Cairns is asserting a right to recover some of the money, which, according to the averments of the bill, is subject to complainant's lien (Code of 1923, § 8935; Russell v. Thornton et al., supra; McPherson v. Cox, 96 U.S. 404, 24 L.Ed. 746; Barker v. St. Quintin, 12 M. W. 451), and all parties claiming an interest in the subject-matter of the suit are necessary parties (Harwell v. Lehman Co., 72 Ala. 344; Seay v. Graves, 178 Ala. 131, 59 So. 469).
The statute (Code of 1923, § 8935) first appeared in the Code of 1907 as section 4829, since the decision of German v. Browne et al., 137 Ala. 429, 34 So. 985, rendering that case inapt as an authority.
The bill, however, was subject to the objections that the averments "that the money claimed in said motion by Jessica B. Cairns is in equity the money of the Truckee Land Company," and that "a long complicated and disputed account existed between the Truckee Land Company and complainant," are mere conclusions of the pleader. While complicated accounts between the parties are not essential to the equity of the bill, where such state of accounts is asserted, good pleading requires more than a mere averment of the pleader's conclusion. Reilly v. Woolbert, 196 Ala. 191, 72 So. 10. And the bill should aver with certainty the services rendered by the complainant and the amount claimed therefor.
Following the prayer for relief the complainant offers to do equity, and submits himself to the jurisdiction of the court, and agrees to abide by all the orders of the court to that end. This seems to follow the approved practice. Sim's Chancery Practice, § 292. However, in this case, in view of the provisions of section 10267 of the Code, we are of opinion that the complainant should go further, and, with his offer to do equity, pay the money into court, so that on final hearing the court can award the money to the parties entitled thereto, without the necessity of issuing compulsory process.
The application for reinstatement of the injunction, pending the appeal, should have been made to Judge Walker, who entered the decree dissolving it, and in case of his refusal, if complainant desired to press the matter further, he should have renewed the application to a Justice of the Supreme Court. Code of 1923, § 8312. Judge Snyder was without authority in the premises, and the motion to discharge the injunction as reinstated, pending this appeal, will be granted. The motion was not waived by its submission along with a motion to dissolve. Code of 1923, § 8302.
We are of opinion that the bill should not have been dismissed without giving the complainant an opportunity to amend. The reinstated injunction pending the appeal is discharged, the decree of the circuit court, in so far as it sustained the demurrers to the bill, is affirmed, but that part of the decree dissolving the injunction and dismissing the bill is reversed, the original injunction is reinstated, and the cause is remanded, with leave to the complainant to amend the bill within 20 days, as he may be advised. Half of the cost of this appeal is taxed against the appellant, and the other half against the appellees.
Affirmed in part, and in part reversed and remanded.
ANDERSON, C. J. and THOMAS and BOULDIN, JJ., concur.