Auten v. City of Asheville, 212 N.C. 380 (1937)

Nov. 3, 1937 · Supreme Court of North Carolina

212 N.C. 380

JOSEPH L. AUTEN v. CITY OF ASHEVILLE.

(Filed 3 November, 1937.)

Attorney and Client §§ 9, 10—

Allegations that plaintiff! attorney was employed by certain taxpayers of a municipality, and succeeded in having a judgment obtained against the municipality in the action reversed on appeal, to the municipality’s great benefit, are insufficient to support an action against the municipality for the services rendered upon implied contract, nor would plaintiff be entitled to a lien for his services.

Appeal by defendant from Sink, J., at April Term, 1937, of Buir-COMBB.

Civil action instituted in tbe General County Court of Buncombe County to recover for services rendered as counsel in litigation resulting in benefit to tbe defendant.

Tbe gravamen of tbe complaint is tbat in December, 1934, plaintiff was employed by a number of citizens and taxpayers to intervene in tbe case of “W. C. Moreland v. City of Asheville,” then pending in tbe Superior Court of Buncombe County, for tbe purpose of appealing from a judgment rendered therein adverse to tbe defendant, the city having abandoned its appeal, which intervention was allowed and resulted in great benefit to tbe defendant, tbe judgment having been reversed, 208 N. C., 35; wherefore, plaintiff demands $6,600, counsel fees as upon implied contract or quantum meruit.

A demurrer was interposed by tbe defendant on tbe ground tbat tbe complaint does not state facts sufficient to constitute a cause of action. Tbe demurrer was overruled in tbe General County Court and this ruling was affirmed on appeal to tbe Superior Court. Defendant appeals, assigning error.

J. Will Pless, Sr., for plaintiff, appellee.

Philip 0. Gocke, Jr., for defendant, appellant.

Stacy, C. J.

It is not alleged in tbe complaint tbat plaintiff was one of tbe interveners in tbe case of “Moreland v. Wamboldt ” reported in 208 N. C., 35. Tbe allegation is tbat be represented certain citizens and taxpayers who intervened therein for tbe purpose of appealing from tbe judgment rendered against tbe city of Asheville. True, be alleges tbe intervention resulted in great benefit to tbe defendant, but this was brought about by tbe action of bis clients, tbe interveners. It would seem tbat tbe plaintiff has sued tbe wrong party. His right of action, if any be have, is against those who employed him. Grant v. Lookout Mountain Co., 93 Tenn., 691, 28 S. W., 90, 27 L. R. A., 100; Meeker v. Winthrop Iron Co., 17 Fed., 48. An implication upon an implication, such as plaintiff here invokes, finds no support among tbe authorities to sustain bis action. He is not permitted to take this short cut. Non constat tbat tbe interveners may not be content to bear their loss or to defray tbe expenses which they incurred. Tbe plaintiff has no lien for bis services. Stephens v. Hicks, 156 N. C., 239, 72 S. E., 313.

Tbe complaint is bad as against a demurrer.

Eeversed.