The demurrers of the appellee raised two questions going to the sufficiency of the plaintiff's petition which were not passed upon by this court, but which, if they had been considered in consultation, might have resulted in the agreement of all the members of the court to an affirmance of the judgment of the court below.
It is apparent from the averments of the plaintiff's petition that his purpose was to perfect an appeal against Hume. The general rule is that a party who is connected with the subject of litigation or has an interest in the same can exercise the right of appeal (Wood v. Yarborough, 41 Tex. 542; Studebaker v. Markley, 34 N.E. Rep., 607); and that a mere interest of a court official in a judgment to the extent of costs merely is not an appealable interest, and it may be that the attorney's fees allowed to the plaintiff in cases of the character set out in his petition stand in the same attitude as costs. If this item is to be regarded as attorney's fees for which the court may render an independent judgment in favor of the attorney, then there arises a conflict of authority as to whether it is such an interest that will support an appeal. The following are some of the cases, pro and con, upon this subject: Lowden v. Lowden, 65 How. Prac., 411; Adams v. Woods, 5 Cal. 314; Pereyra's Appeal, 126 Pa. St., 221; Martin v. Tapley, 119 Mass. 120.
While I may entertain some doubt upon the question that the *Page 405 plaintiff had an appealable interest in the judgment described in the petition, I am inclined to the opinion, that, under the statute under which the attorney's fees were allowed, no appealable right existed against the appellee Hume. The court in its opinion points out the two articles of the Revised Statutes under which the plaintiff can, in a case of the character set out in the administration proceeding in his petition be entitled to attorney's fees for representing unknown heirs under an appointment of the court. Article 2134, which authorized the court to allow reasonable attorney's fees, states that the allowance must be paid out of the estate of the person they represent. The plaintiffs in the proceeding referred to were appointed as attorneys for the unknown heirs. There is no provision of the statute which authorizes such an allowance to be charged and taxed as costs in the case, for which the property of the estate would be liable, but the statute is specific in its terms to the effect that the compensation must be paid out of the estate of the persons that the attorneys represent.
The liability created by the statute in favor of the attorney's fees allowed would, in this instance, be against the unknown heirs, for they are the persons whom the attorneys were appointed to represent, and did in fact represent. There were no unknown heirs that were shown to be entitled to any part of the estate, nor is it made to appear that Hume acquired the interest of any such heirs. Therefore, in an attempt to prosecute an appeal from an allowance of attorney's fees, I can not perceive how Hume would be a necessary or proper party to that appeal, or how they could have, under the terms of the statute, an appealable interest as against him.
I am aware of the fact that an agreement to dismiss or abandon an appeal is sufficient consideration to support a promise to pay, but I do not believe that a mere promise to pay predicated upon a prospective assertion of appeal will form a sufficient predicate for a consideration, when such right of appeal does not exist in law. The unexecuted promise of one to another to forbear the assertion of a demand for which there is no legal or equitable basis, will not, in law, form the basis for a valuable consideration. Now, in this instance, if Hume or his interest was in nowise liable for the attorney's fees, and there had not been, as such is the case here, any appeal actually perfected and prosecuted, which tied up and held in abeyance any right of enjoyment in the property that Hume might have, I can not see how the illegal and unconsummated purpose of the plaintiff to prosecute such an appeal would make Hume liable upon a promise that the plaintiff would refrain from the assertion of such unauthorized right. But, as said before, this question, together with the other mentioned, was not passed upon in consultation; and I therefore, for this reason, refrain from expressing any conclusive and decided views upon this question, but merely outline the above suggestions for the purpose of indicating that if these questions had been passed upon, doubtless the entire court could have agreed upon an affirmance of the judgment.
I can not agree with the majority of the court in the reasons given *Page 406 for affirming the judgment. We do not differ as to the correctness of the principle of law announced in the opinion, but in its application to the facts stated in the petition.
If it be conceded that the appellants had an appealable interest from the judgment for attorney's fees, and that this remedy could be pursued against appellee Hume, and that the judgment for attorney's fees is independent and distinct from the judgment in the main case disposing of the subject of controversy, then, in my opinion, the averments of the petition state a case showing a purpose only to bring up by appeal such independent and severable interest. Where the parts of a judgment or decree are so distinct and independent as to be severable, an appeal from a part does not bring up the entire case. 2 Enc. of Pl. and Prac., 365. The petition contains this statement: "That on the hearing of said application, it was proven by uncontradicted evidence that their said services were reasonably worth the sum of $3000, but the court refused to allow them said sum, and only allowed them $2000 for their said services, to which ruling of the court they, for the unknown heirs, excepted in open court and were preparing to prosecute an appeal to the Court of Civil Appeals having jurisdiction thereof, relying for error on the sole ground, and no other, that the sum allowed them by the court was not reasonable compensation for their said services in and about said matter; that in the judgment of said Steger Steger at the time the evidence was sufficient to sustain said judgment against said unknown heirs, and they did not intend nor propose to appeal for said unknown heirs on any other ground save that the amount so allowed Steger Steger by the court for their services as such attorneys was not reasonable compensation for their said services so rendered in said cause for said unknown heirs."
This clearly indicates that the purpose was to appeal only the independent issue of attorney's fees, and expressly negatives any purpose and intention to bring up any part of the controversy in which their clients, the unknown heirs, had an interest. The statement that the appeal was in the name of the unknown heirs is limited and controlled by the facts stated showing the purpose of the appeal and the issue to be raised and determined by it; and the statement that the unknown heirs had appealed this issue should, when tested by a general demurrer, be construed to mean simply a means or form of perfecting the appeal of the attorneys, and that the name of the unknown heirs was merely borrowed and used as a vehicle to bring up the appeal, and get only the question of attorney's fees before the court.
When a petition is tested by a general demurrer, every reasonable intendment should be indulged as to its sufficiency. Railway Co. v. Montier, 61 Tex. 122; Railway Co. v. Morris,68 Tex. 59; Chandler v. Harrell, 7 Texas Ct. Rep., 107. If there is any virtue and force in this rule, why should not the petition be aided by the reasonable inference that the attorneys had the consent of their clients to use their names solely for the purpose of reviewing the action of the court, by an appeal, *Page 407 on the issue of attorney's fees; and why not indulge the inference that the attorneys acted with the knowledge and consent of their clients wherein they aver that they did not intend or propose to appeal for said unknown heirs on any other ground save that the amount so allowed them by the court for their services as such attorneys was not a reasonable compensation. Is not the inference more reasonable from the deductions to be drawn from the facts stated that the purpose and effect of the appeal and dismissing it, did not and could not injure their clients, or involve any right of theirs; and that the attorneys did not by such a course antagonize any interest of their clients, and that their conduct in such matters was professional, then the conclusion reached by the majority of the court that the attorneys by abandoning the appeal deprived their clients of a valuable right, and that by such a course their clients were deprived of their "loyal and disinterested opinion, untrammeled by outside considerations."
In the face of the general demurrer, could not the attorneys, upon a trial of this case, have proven the fact that their clients consented to the course pursued, as alleged in the petition? I am of the opinion that in the absence of a special exception such evidence would have been admissible. The fact is stated in the petition that the verdict of the jury found that Sarah A. Dove and her coapplicants were the true and only lawful heirs of Bean, and that judgment was rendered in accord with this verdict. If this is true, the deduction, conclusion and inference should be drawn that there were no unknown heirs, and if such is the case, an appeal and dismissal of it could not affect the interest of the supposed but unreal clients of the attorneys. If the attorneys had an appealable interest as against Hume in the judgment for attorney's fees, bringing the case up for the purpose of settling that issue in the name of the unknown heirs and dismissing such appeal, could not, by all the reason of the most expert legal minds, be justly proven to be conduct reprehensible, unprofessional and against public policy, when in fact there were no unknown heirs, and such clients existed only as a legal fiction. When the conduct of an attorney is assailed on the ground that it is against public policy, in that it antagonizes some duty that he owes his client, I know of no rule that prohibits such attorney, in disproving that charge, to establish the fact that such party was or is not his client, or that such supposed client never in fact existed. I know of no rule of law, evidence or estoppel that precludes advancing such defense. *Page 408