Summary
In McFarland v. Lumpkin, 110 Ga. App. 222 (138 S.E.2d 194) (1964) the Court of Appeals held that where the litigation was not between the estate and a third party but was for the purpose of determining rights between possible heirs to the estate, the assets of the estate were not chargeable with counsel fees for the actual litigants.
Summary of this case from Alford v. Citizens c. Nat. BankOpinion
40819.
DECIDED SEPTEMBER 8, 1964.
Action on contract. Fulton Civil Court. Before Judge Camp.
Walter G. Cooper, for plaintiff in error.
S. S. Robinson, contra.
1. The contract for professional services, which is the basis for the cause of action under the allegations of count 1 of the petition, is not too vague and indefinite to be enforceable and the trial court erred in sustaining a general demurrer to such count of the petition.
2. Further proceedings were nugatory.
DECIDED SEPTEMBER 8, 1964.
The plaintiff filed suit against Emma Lumpkin and S. D. O'Neal, individually and as temporary administrator of the estate of Charlie Lumpkin, deceased, to recover under a written contract whereby the plaintiff, an attorney, was employed to represent the defendants with reference to the estate of Charlie Lumpkin. The defendants demurred to the original petition and the plaintiff amended. The amendment struck the defendant O'Neal as a defendant in his representative capacity but continued against him individually, and added a second count seeking to recover on quantum meruit. The defendants renewed their demurrers and filed additional demurrers to the petition as amended and on the hearing of such demurrers the trial court dismissed count 1 by sustaining a general demurrer which read as follows: "That count one of said petition as amended as a whole fails to allege sufficient facts to constitute a cause of action against said defendants jointly or individually." The demurrers attacking the petition as a whole and attacking count 2 of the petition were overruled and no exception taken. Thereafter, on the trial before the court without the intervention of a jury a judgment was rendered for the plaintiff for less than the amount sued for in either count. The plaintiff then filed a motion for new trial as to count 2 of the petition which was overruled. Error is assigned on the judgment sustaining the general demurrer to count 1 as well as on the judgment overruling the plaintiff's motion for new trial.
1. The contract sued on in count 1 of the petition showed that the plaintiff was employed by the defendant Emma S. Lumpkin to represent her and the temporary administrator, and that such employment was accepted by S. D. O'Neal who is alleged to be the temporary administrator.
The allegations of the petition, the contract, and the attorney's lien attached as an exhibit to the petition, show that the case does not fall within the category of Estes v. Collum, 91 Ga. App. 186 ( 85 S.E.2d 561), where the original action was to recover property for the estate and for which the estate would be responsible for reasonable attorney's fees for the use of the heirs' attorney who recovered such property for the estate, but rather involves a situation where an attorney is employed to establish, in a contested case, that the employer is an heir at law of the deceased, and as such was entitled to nominate the person appointed to administer such estate. Under such circumstances the Act of 1964 (Ga. L. 1964, p. 211), amending Code § 113-1522 is not applicable, for the litigation was not between the estate and a third party but was for the purpose of determining rights between possible heirs to the estate.
As to the provisions contained in the contract, under the decisions in Southern Land, Timber c. Corp. v. Davis Floyd, 109 Ga. App. 191 ( 135 S.E.2d 454), and the cases there cited the contract, being for professional services, was sufficiently definite to support the action and is therefore distinguishable from the cases exemplified by Peachtree Medical Building v. Keel, 107 Ga. App. 438 ( 130 S.E.2d 530), where the alleged executory contract was between a building contractor and a land owner and it was held that the contract was not sufficiently definite to support a cause of action. Moreover, since the plaintiff had fully performed the services he was engaged to render, the question of whether the contract was sufficiently definite became moot. Jones v. Dupree, 93 Ga. App. 830 (4) ( 93 S.E.2d 191).
The demurrer which the trial court sustained attacked the petition as not setting forth a cause of action against the defendants jointly or individually. This demurrer did not raise the question of misjoinder of parties defendant or of causes of action (See Cartwright v. Commercial Credit Equipment Corp., 103 Ga. App. 480, 119 S.E.2d 606; Ebner v. Gulf Oil Corp., 99 Ga. App. 586 (1) 109 S.E.2d 81, and citations), and since the petition set forth a cause of action against the defendant Emma Lumpkin the judgment of the trial court sustaining such general demurrer must be reversed.
2. In as much as the judgment of the trial court sustaining the general demurrer to the first count of the petition must be reversed the further proceedings were nugatory.
Judgment reversed. Hall and Russell, JJ., concur.