Opinion
Opinion filed May 17, 1935.
1. INFANTS.
Next friend cannot contract with counsel for amount of their fees so as to bind minor.
2. INFANTS.
Supreme Court held without jurisdiction of petition seeking to fix compensation for counsel representing a minor who sued by next friend, since amount of compensation is to be determined upon reference as to what would be reasonable remuneration for counsel in proceeding wherein infant is made defendant and a guardian ad litem appointed to represent him (Code 1932, sec. 8035).
3. INFANTS.
In determining amount of fees to be paid counsel for a minor, the relationship of counsel and infant is antagonistic.
4. INFANTS.
In determining amount of fees to be paid counsel for a minor, reference may be had in the case in which the services were rendered.
FROM DAVIDSON.Error to Circuit Court of Davidson County. — HON. A.G. RUTHERFORD, Judge.
Action by Berry Hiram Williams, by next friend, against the City of Nashville. Judgment for plaintiff, and defendant brings error. On petition to fix attorneys' fees. Petition dismissed.
J.W. MOORE, JACK KEEFE, O.W. HUGHES, and R.L. ALEXANDER, JR., all of Nashville, for plaintiff in error.
ROBERTS ROBERTS, of Nashville, for defendant in error.
In this case we are presented with a petition asking that we fix the amount of compensation for counsel representing the six year old infant, Berry Hiram Williams, who, suing by next friend, recovered a judgment against the city of Nashville for $10,000 for personal injuries. A lien was declared on said recovery in favor of counsel pursuant to section 8035 of the Code.
The next friend cannot contract with counsel for the amount of their fees so as to bind the minor. Roberts v. Vaughn, 142 Tenn. 361, 368, 219 S.W. 1034, 9 A.L.R., 1528. The amount of compensation is to be determined upon reference as to what would be reasonable remuneration for counsel in a proceeding in which the infant is made a defendant and a guardian ad litem appointed to represent him. In determining the amount of fees, the relationship of counsel and the infant is an antagonistic one. See Roberts v. Vaughn, supra; Bowling v. Scales, 1 Tenn. Ch., 618; Gibson's Suits in Chancery (Chambliss Ed.), sec. 106. Under these authorities the reference may be had in the case in which the services were rendered. If desired, an order may be entered remanding the case to the circuit court for a reference as to fees, with leave to counsel to file a petition in that court making the infant a defendant thereto, and, upon the forthcoming of the answer of the guardian ad litem, the case may be referred to the clerk for proof and a report.
This court is without jurisdiction to determine the matter presented in the petition; hence it will be dismissed.