Gay v. Davis

6 Citing cases

  1. Horner v. Chamber of Commerce

    236 N.C. 96 (N.C. 1952)   Cited 34 times
    In Horner v. Chamber of Commerce, 236 N.C. 96, 72 S.E.2d 21 (1952), a case in which attorney's fees were held properly allowable as costs to a plaintiff who had recovered public funds in an action the City of Burlington had refused to bring, this Court said: "We are not unmindful that the power to make an allowance of counsel fees from a fund brought into court is susceptible of great abuse, and should be exercised with jealous caution.

    Strictly speaking, the doctrine rests, not upon the theory that the allowance is for attorney fees as such or as an element of court costs, but rather upon the principle of approval by the court, in the exercise of its chancery powers, of expenditures reasonably incurred in creating or preserving the fund or property. Gay v. Davis, 107 N.C. 269, 12 S.E. 194; Banking Co. v. Leach, 169 N.C. 706, 86 S.E. 701; 15 N.C.L.R., p. 333 et seq. The rule has been recognized and applied by this Court in various classes of cases, most common among which are those involving allowances to pay fees for services furnished by attorneys to (1) next friends of infants or others under disability and (2) fiduciaries such as receivers, trustees, and those administering estates of decedents, respecting litigation involving either the creation or protection of the common fund or common property.

  2. In re Will of Howell

    204 N.C. 437 (N.C. 1933)   Cited 9 times

    Accordingly, it may be stated as the general rule in this jurisdiction that counsel fees, as such, are not allowed as a part of the costs in civil actions or special proceedings. Ragan v. Ragan, 186 N.C. 461, 119 S.E. 882; Byrd v. Casualty Co., 184 N.C. 226, 114 S.E. 172; Roe v. Journigan, 181 N.C. 180, 106 S.E. 680; Durham v. Davis, 171 N.C. 305, 88 S.E. 433; Midgett v. Vann, 158 N.C. 128, 73 S.E. 801; Donlan v. Trust Co., 139 N.C. 212, 51 S.E. 924; R. R. v. Goodwin, 110 N.C. 175, 14 S.E. 687; Gay v. Davis, 107 N.C. 269, 12 S.E. 194; Patterson v. Miller, 72 N.C. 516; Ralston v. Telfair, 22 N.C. 414. Speaking to the subject generally in Mordecai v. Devereux, 74 N.C. 673, Pearson, C. J., delivering the opinion of the Court, said: "This Court has never interfered between attorney and client in making allowance for professional services, and we are not inclined at this late day to assume the power to do so.

  3. Ragan v. Ragan

    119 S.E. 882 (N.C. 1923)   Cited 7 times

    We do not think such practice has obtained in this State. In Gay v. Davis, 107 N.C. 269, this Court said: `There is no statutory provision in this State that has been brought to our attention, or within our knowledge, that prescribes or authorizes an allowance of compensation directly to the counsel of commissioners charged with a particular duty by an order of the court, or otherwise, or to counsel of trustees, whatever may be the nature of the trusts wherewith they may be charged. Nor is there any general rule of practice prevailing in courts that permits such allowance to be made. In the absence of statutory provision, the courts, in the exercise of chancery powers, make allowances to commissioners and trustees in appropriate cases, and such allowances are sometimes enlarged so as to embrace reasonable compensation to counsel of such commissioners or trustees, in cases where counsel is necessary to a proper discharge of their duties; but in such cases the courts are careful to see that the services were necessary, that the charges are reasonable and are charged agains

  4. Durham v. Davis

    171 N.C. 305 (N.C. 1916)   Cited 16 times

    First. The general rule in this Court has been that counsel fees are not allowed in civil actions or like proceedings to either party. There are exceptions, but this case does not fall within any of them. Patterson v. Miller, 72 N.C. 516; Mordecai v. Devereux, 74 N.C. 673; Gay v. Davis, 107 N.C. 269. Counsel for defendant referred us to Revisal, secs. 2587 and 2592.

  5. Knights of Honor v. Selby

    153 N.C. 203 (N.C. 1910)   Cited 17 times
    Concluding that defendants who "answered and set up their conflicting claims to the fund" waived an alleged defect with regard to the interpleader

    We do not think such practice has obtained in this State. In Gay v. Davis, 107 N.C. 269, this Court said: "There is no statutory provision in this State that has been brought to our attention, or within our knowledge, that prescribes or authorizes an allowance of compensation directly to the counsel of commissioners charged with a particular duty by an order of the court, or otherwise, or to counsel of trustees, whatever may be the nature of the trusts wherewith they may be charged. Nor is there any general rule of practice prevailing in courts that permits such allowances to be made. In the absence of statutory provision, the courts, in the exercise of chancery powers, make allowances to commissioners and trustees in appropriate cases, and such allowances are sometimes enlarged so as to embrace reasonable compensation to counsel of (208) such commissioners or trustees, in cases where counsel is necessary to a proper discharge of their duties; but in such cases the courts are careful to see that the services were necessary; that the charges are reasonable and are char

  6. R. R. v. Goodwin

    110 N.C. 175 (N.C. 1892)   Cited 7 times

    The motion to tax an allowance in his behalf against the opposite party was therefore properly denied. The question of the allowance of counsel fees not against the opposite party, but out of a trust fund which he is employed to protect, is considered and discussed in Chemical Co. v. Johson, 101 N.C. 223; Gay v. Davis, 107 N.C. 269; Mordecai v. Devereux, 74 N.C. 673. Affirmed.