New York Life Ins. v. Dorsett

On Rehearing; By the WHOLE COURT. LEOHE, .T. A rehearing was granted herein for two reasons; first, because the main question at issue in this proceeding, the same as that involved in the case of Mrs. Sallie Dorsett, Administratrix, v. L. E. Thomas, State Bank Examiner et al., No. 24751 (La.) 92 South. 734 , 1 was reopened for consideration by the granting of a rehearing in that case; and, secondly, because, although plaintiff had filed a brief in support of its demand, that brief through error or inadvertence was not inserted in the record, and escaped the attention of the court when the case was first decided. The ownership of the policies of life insurance in suit was this day again declared to be in Mrs. Sallie Dorsett, administratrix of the succession of J. Leer Lacombe, and that question is now finally determined by the decree rendered in that ease. [3] The authorities cited in brief by plaintiff in support of its claim for attorney’s fees are from other states, where the common law prevails and where the pleading known as a “bill of interpleader” is recognized. In this state it has often been held that an attorney’s fees are not recoverable from one who has not employed him, however valuable the result of his services may have been to such person. Forman v. Sewerage & Water Board, 119 La. 48 , 43 South. 908 , 12 Ann. Cas. 773; Dreifus v. Colonial Bank & Trust Co., 127 La. 1086 , 54 South. 358 ; In re McPherson’s Estate, 129 La. 182 , 55 South. 756 . The case of Dunlap v. Whitmer, 137 La. 792 , 69 South. 189 , cited by plaintiff, was a concursus proceeding, in which attorney’s fees were refused to the depositor of the fund, -and the reason advanced in that opinion for such refusal was that .the depositor *71 or provoker of the concursus had an interest in the fund. The decision assimilates our consursus with the common-law bill of inter-pleader, and cites as authority Grover v. Sentell, 153 U. S. 465 , 14 Sup. Ct. 898, 38 L. Ed. 785 . But from this it does not necessarily follow that one who provokes a concursus even without having an interest in the fund to be distributed is entitled to his attorney’s fees. We therefore feel constrained to adhere to the rule established by our own jurisprudence. Of course'a litigant is sometimes allowed attorney’s fees as damages, but in this case there is no pretense that plaintiff is entitled to damages against the owner of the fund. The decree heretofore rendered is therefore reinstated and made final. O’NIELL, J., dissents. On Motion to Correct Decree. By the WHOLE COURT. LECHE, J. Our attention is called by the plaintiff: (1) That on rehearing our former decree "was reinstated; (2) that our former decree amended the judgment appealed from only in so far as to refuse the demand for attorney’s fees allowed to plaintiff by the district court; and (3) that in the decretal part o'f the judgment appealed from there is a clause ordering that the proceeds of the insurance policies • deposited in the registry of the court be paid to the state examiner of state banks and to the special agent and liquidators of the American Bank & Trust Company. Our attention is further called to the fact that it might be inferred that the portion of the judgment of the district court ordering the proceeds of the policies to be paid to the state bank examiner and liquidator of the American Bank & Trust Company was affirmed and made the final judgment of this court, while on the companion case, No. 24751, Mrs. Sallie Dorsett, Administratrix, v. L. E. Thomas, State Bank Examiner et al. (La.) 92 South. 734 , 1 involving purely the ownership of said policies, the decree ordered that these policies be turned over to Mrs. Sallie Dorsett, administratrix of the succession of J. Leer Lacombe, to be by her collected in her said official capacity as administratrix. The error is patent and clerical in its nature, and it arises from the fact that the relief which plaintiff prays for in its petition is “that the deposit of said fund may be accepted and declared to be-a complete discharge of petitioner’s liability in the premises,” and that, this relief having been granted, plaintiff had no further interest in the disposition of the deposit. [4] Litigants, however, are entitled to decrees couched in language clear, concise, and not subject to misconstruction; wherefore, with that end in view and with the consent of all parties, our decree is restated as follows: The judgment appealed from is amended by refusing plaintiff’s demand for attorney’s fees, and by avoiding and annulling that part of the decree ordering the proceeds of the insurance policies to be paid to the state examiner of state banks and the special agent and liquidator of the American Bank & Trust Company, and, as thus amended, said judgment is affirmed. O’NIELL, J., dissents. Ante, p. 60. Ante, p. 60.