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8lilMiiES

WHITNlllY

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, (CCrcuit COurt, E. D.LoutsiaMiJuue e,18ft.)
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No 19 (Jl8

1.

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",' ,The Statelliu Louisiana has jurisdiction of a 8uit b1 an atrorneyresidirig ill: t'hat state agMnst'anonresidentadministratorappointed by a Louisiana court, to enforce an attorney'8lien on a judgment recovered by the at,tor,the "

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'Jurisdiction ls'nbta1tected, by the fact that the state laws give nelusi'" r of such a, 8uitto ,the probate CC1Ul't of the 8tate. ' It ATToB!n1:t's LIIlN-COl'lTqT&IIlNT FEES. ' 'A,APODtrlWt made by,an with the tutor and tutrix of minor heirs for a oflOl1erClmt. on 'the reoovllr,Y,. if any, ina suit brought by the atl6rnlly to' enforce Iii olaim Of the heirs. there beingnd means of paying ootlDsel fee. except out of the recovery. is valid, and entitles the attorney to alien on the reCO'9',

011' STATB COURT.

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,ttiEquity. , Suit 1:Jjr, ThOIIj8S iT. Semmes, against W.W. WhitneYt of the of. Myra Clark Gaines, to enforce an attomey'S lien. Decree forplairitiff.' , for Mlllplainant. ':ROUH' & Grant, for defendant.
'B_I:.LINGS, l>istrict JUdge:'This is a suit in which an attorney at lalt wM cdhducted the case ,for the plaintiff, terminating in a judgment in h'Eir'favol',sues in equity to recover his fee, and have it declared to be a lien l1pon the The firetquestionis as to' jurisdiction. "The plaintiff is a citizen of LouiSiana" and the defendant, though 'administrator of an estate who is by the Louisiana mortuary. icourt, isa. citizen of Massachusetts. The case of Rice v. Houatoo, 13 Wall. 66, isl conclusive as to the q:'lrejmm'of general jUl'bldiction, f., ,it settles the law to, be that, the parties being citizens of different states, jurisdiction is not defeated' because one is administrator appointed by the courts of the state of which the other is a citizen. Code Proc. La. arts. 924, 983, undoubtedly give, so far as the courts of the state of Louisiana are concerned, exclusive jurisdiction to the probate court. But this state legislation has no effect to prevent the circuit courts of the United States from exercising jurisdiction. That jurisdiction springs from tho putting into operation by congress the constitution of the United States, and cannot be impaired by the states. Lawre:nce v. Nelsrm, 143 U. S. 215, 223, 12 Sup. Ct. Rep. 440, and Payne v. Hook. 7 Wall. 425. This court has jurisdiction, and can render a decree which would, as to the amount of the debt and the existence of the lien, conclude the administrator and the succession. The lien, being that of a solicitor who has recovered a judgment, upon that judgment springs both from the doctrine of the equity courts and from a statute of the state of Louilliana. The lien gives almost a prcprietary interest in the judgment. It would be only the residue of the judgment, after deducting the amount of the solicitor's fee, which would,

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'BEM]tIE;$ 11. WHJ:TNEY.,

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ip. the ordinary course of things, be paid over by

the proper court in Louisiana natural tutrix of these children. We are of opinion that this appointment made it her duty to take the necessary steps to obtain this money from the United States. and that. whether the suit was hrought in her own name. orin hers jointly with her children. she was equally bound to prosecute it with diligence. and to do an. that was necessary to ra. cover the money. It would be a queer condition of the law if. while it imposed this obligation upon her. it gave her no authority to employ counsel to prosecute the claim before the only legal tribunal which could allow it; and. if she could employ counsel. it follows. as a matter of course. she could make a contract for the amount of· their compensation. This agreement would bind her as tutrix as well as in her individual right. and it is in both characters.she professes to contract. Such undoubtedly is the law of LOUisiana. which must govern as to her powers as tutrix. siJ,lce it is there she was appointed. and there both she and her children resided when she made the agreement with Taylor and Wood. Of her authority to make such a contract as tutrix we have no doubt."

plaintiff to, .the sl,lC:' cession·. Incase of the insQlvency of the succession, eveuif the' court might have to determine the, rank or the lien fl,S, tween the complainant and the holders of other t4e effect of the judgment would still be,beyond all coptroversy, to fix, as between the p}aintiff and the succession, the amount due and the lien upon the spe-. cific thing, the judgment. A strong effort was made in theargumellt t() distinguish this case from those where jurisdiction has been maintained, because, in this case, the contract sued upon was made, and the whol!! work under it performed, after the death of the intestate; the force of thQ argument being that the mortuary court would so much more properly deal with a case which had entirely arisen under its administration of an e,state. But argument is overcome, as is the state statute, by force of the paramount law of the United States found in the as put in force by congress. The court, in my opinion, has jurisdiction. As to the case on the merits. The suit is brought on a contract made between the complainant and the natural tutor and tutrix of the minor heirs. For aiding in conducting this case in this court and in the supreme court the complainant was to receive, in money or bonds, 10 per centum of the amount recovered. The agreement as to the facts upon which the case has been submitted. contains the following: "When the contracts were made with the complainants, the estate of Mrs. Gaines had no mean", of payment of counsel fees or expenses other than recovery in said suit; II that is, the suit in which the employment was had. With this fact in the record, the power to make a contract fixing a contingent fee would seem to necessarily exist in those who administered the estate, as there was nothing but a contingent fee which could be promised. In Taylor v. Bemiss, 110 U. S. 44, 3 Sup. Ct. Rep. 441, the court declare the validity of just such a contract made with a tutrix in I.ouisiana, in these words: "The bill of the minor heirs states that Mrs. Bemiss had been appointed by

This would be the ruling of the court, unless the evidence as to what was a reasonable or just compensation is such as to make the contract seem unconscionable, or to excite the suspicion of. fraud or the want of

668'

FEDERAL REPORTER,

voL 50.

the matter of the' contract on the part of the tutor and tutrix,. ,.Tbis',tel!timony consists of the whole rec6td of the case in which the fee iaclllimed to have been earned, and the statements of Mr. Benegentlemen fixes the amount of a readict and' PrOf. Denis. One of fee for Mr. Semmes and Mr. Goldthwaite, each, at 5 per cent. of the reco+erYl the other, at 10 per cent. Mr. Benedict does not seem to haveh:adhisattention particularly called to the fact that the fee was been no case made upon .1ecessarllycontingent. There has :he proofs which would. authorize a court of equity to look upon the ··niorint6fthe contract compensation as inequitable. My conclusion, therefore, is fhatthe cOlllplainantmust have a decree for 10 per cent. of the recovered accordingto the terms of the contract, as the payment 'shaW. :be made in money or-bonds, with the lien upon the judiment as prayed:!or in the bill o!c?mplaint.

GOLI>THWAITE

t. WHITNEY.

(C1Ircuit Court, E. D. Lou1.B1.aIna. June 6, 1800.)

No. 12,019.

4'l"1'01!1fBT$-VAJ,IDITT OJ' CoNTINGENT FBBS.

tuted for the' fixed fee a contingent fee of 10 per cent. of the amount recovered. HeW, that, for the reasons given in the foregoing case,'the second agreement wu _valid.

fixed fee. -Subsequently, and after the death of the intestate, the attorney made a with the representatives of the estate, by which there was substi-

A contract had been made between an attorney at law and the intestate for.

In Equity. Suit by Alfred Goldthwaite against W. W.Whitney, adQlinistratorqf the succession of Myra Clark Gllines t to enforce an attorney's lien:" Decree for plaintiff. Thos. J. Semmes, for complainant. Rouse kGr(1)ll,t" for defendant.
BILUNGS, District Judge. The facts in this case are the same as in the preceding, (50 Fed. Rep. 666,) except that Mr. Goldthwaite had been employed during the lifetime of the intestate, and had a contract for an absolute sum, $50,000, for which the contingent fee of 10 per cent. was sl'lbstituted by It contract made by him and the tutor and tutrix of the heirs after the death of Mrs. Gaines. I think the same rules of law govern' the two cases as to the validity of the contract, and that there must be the judgment in this as in the preceding case.