It is my belief that a fee of $150 is ample and proper for the curator ad hoc in this controversy, in view of the circumstances shown by the record and hereafter discussed.
As the majority opinion points out, the nonresident defendant, Moran Corporation of the South, was at all times represented by regular counsel (Isaac S. Heller). It was he who filed on behalf of the corporation an exception to the citation served on the Secretary of State. And it was because of that filing, and only by reason thereof, that the plaintiff, through a supplemental petition, requested the appointment of the curator ad hoc on whom service of process might be made. The purpose of requesting and obtaining the appointment was to assure the court's jurisdiction of the non-resident corporation as expeditiously as possible.
I agree that in determining the fee to which a curator ad hoc is entitled, consideration, ordinarily, is to be given to a number of elements, including "the responsibility incurred, the amount involved or in controversy, the extent and character of the labor performed, the legal experience and knowledge of the attorney involved, and the ability of the debtor to pay." First and of most importance among these is the matter of responsibility.
In the instant case, slight responsibility, if any, devolved upon Mr. Perez, the curator ad hoc; the non-resident corporation, for which he was appointed, was already represented in this state and in this litigation by other able counsel, this to his knowledge as is clearly shown by the correspondence *Page 782 that passed between him and defendant's regular attorney, Mr. Heller. If the burden and responsibility of defending the suit had been upon him, unquestionably there would be necessary and appropriate the giving of due consideration to the amount involved as well as the other mentioned elements, including the undisputed above-the-average ability and experience of the appointee; and he, in my opinion, would be entitled to a fee much larger than that awarded by the trial court and approved here. But such is not the case.
The services performed by the curator ad hoc consisted principally of drafting and filing on November 15, 1940, his first and only pleading and of writing the numerous letters discussed in detail in the majority opinion. In that pleading he made reference to the service on him of the notice of his appointment and of a copy of plaintiff's supplemental petition, and he declared that "he accepts the appointment and files herewith the usual curator's oath"; further he recounted certain correspondence and telephone calls occurring up to that time, regarding one of which calls he alleged: "That as of date November 8, 1940, he (Perez) telephoned Isaac S. Heller, attorney at law, whom he knew to be the regular retained counsel for the Moran Corporation of the South, when he was advised Mr. Heller was out of the city and would return on Wednesday, November 13, 1940; that on Wednesday, November 13, 1940, Mr. Heller telephoned the undersigned, advising that he had just returned from Detroit, Michigan, * * *".
Of course, Mr. Perez testified that he made two trips to Pointe-a-la-Hache in the *Page 783 interest of the litigation (this is disputed by plaintiff's counsel), but I can not appreciate the necessity of his making either of them. The first, so he claims, occurred shortly after his appointment and before service of the original petition on him; obviously, he was not then properly in court, because the citation that he had received, accompanying which was only the supplemental petition, was defective. The second trip was made on February 19, 1942, on his being notified by the Clerk of Court that the exception to the citation (previously filed by Mr. Heller the regular attorney for Moran Corporation) were fixed for trial on that date; however, prior thereto Mr. Perez had received from Mr. Heller a letter dated February 5, 1942, which said:
"The matter of our exception to the citation has been fixed for trial, and I propose to argue it, if and when it comes up. For this reason, I don't believe there is anything for you to do at this time. I will take the position, of course, that the Moran Corporation is not obligated to you in any respect. This is a position I don't like to take, but after all, I am representing them, and not you, although I would much prefer the latter. Best regards.
"Sincerely yours,
"(Sgd.) Isaac S. Heller"
If before the filing of the instant rule plaintiff's counsel had tendered to Mr. Perez a reasonable fee, in response to his numerous requests therefor, and he had refused to accept it, then I think that payment to him of something less than $100 would be appropriate in view of the above shown circumstances. However, they failed in their duty of attempting to make an *Page 784 amicable settlement with him; and, as a consequence, they should be condemned to pay an amount approximating that which I suggest ($150), together with all costs of the rule.
For these reasons, I respectfully dissent.