A. M. TENNEY, et al., v. CITY OF MIAMI BEACH, 152 Fla. 126

TERRELL, J.: This was a class suit instituted under

Section Fourteen, 1931 Chancery Act. The bill of complaint prayed that certain assessment liens imposed by the City of Miami Beach on lands abutting Collins Avenue be cancelled and that all funds collected by the City pursuant to said liens be restored to the property owners. The chancellor found for the complainants and decreed accordingly. His decree was affirmed by this Court. City of Miami Beach v. Tenney, et al., 150 Fla. 241, 7 So. (2nd) 136.

On the going down of the mandate, the plaintiff petitioned the court to permit those who had not filed their claims with the master to do so and at the same time the, attorneys for the plaintiffs petitioned the court to be allowed attorneys’ fees from each person benefitted by the litigation. The court granted both petitions and as to attorneys’ fees, he found that one third of the amount recovered for each member of the class was a reasonable fee to be allowed. This decree was entered on August 3, 1942, but was on August 29th, stayed and suspended.

On October 9, a third decree was entered wherein the court found that he was without jurisdiction over those who had paid nothing on the liens but as to those who had paid, he decreed that recovery be conditioned on payment of attorneys’ fees. The latter decree is here for review by certiorari. It appears that the City of Miami Beach imposed special assessment liens on the lots of 232 owners abutting Collins Avenue. A. M.

Tenney and another contending that said liens were imposed without legal authority and were void brought this as a class suit in behalf of all the property owners in like situation to cancel the liens. Query, is the chancellor impowered to require the property owners so affected to contribute to the expenses of the litigation, including a reasonable attorney’s fee as a condition precedent to cancellation of the liens on their property? There is no basis whatever for the chancellor’s ruling that he was without jurisdiction over those who had paid nothing on the liens against their property.

The suit was instituted as a class suit as provided by

Section Fourteen of the 1931 Chancery Act. This Act in terms provides that when the question is one of common or general interest to many constituting a class so numerous as to make it impracticable to bring them all before the Court, one or more may sue or defend for the whole. The very purpose of a class suit is to save a multiplicity of suits, to reduce the expense of litigation, to make legal processes more effective and expeditious, and to make available a remedy that would not otherwise exist. The chancellor had jurisdiction of the parties to the cause and the subject matter of the litigation.

When this is the ease, those of the class for whose benefit the suit is brought are in effect parties plaintiff. Wheelock v. First Presbyterian Church of Los Angeles, 119 Cal. 477, 51 Pac. 841; Whiting v. Elmer Industrial Assn., 61 N. Y. S. 27. If this is not the case and the subject matter of the litigation cannot be held to respond to its necessary cost, then the advantage to be derived from a class suit is nullified. To have required 232 separate suits here would have been prohibitive and ridiculous and would have deprived many of a remedy.

When the court permits a class suit to be brought or defended by one or more of the class, it necessarily follows that absent parties are properly represented and are bound by the decree. If the only means of making the judgment effective is to proceed against the res or the subject matter of the suit, the chancellor has power to do so. A class suit is brought on the theory that claims, issues, and defenses are common and that when the right of the nominal parties to the suit is adjudicated, the right as to all becomes in effect adjudicated.

If the chancellor cannot then enter a judgment that will affect all in the class, the very basis of the suit is destroyed. In the case at bar, the Court had jurisdiction of the City and when the right of Tenney was adjudicated, it was competent for' him to adjudicate the right of all in the class. His decree may require cancellation of the void liens on application therefor and on condition of payment by each party of a proportionate amount of the costs including a reasonable attorney’s fee.

If such a decree is for any reason inequitable as to any member of the class affected, he may make showing of such fact when he applies for cancellation and the chancellor may enter such decree as to him is just and proper. It matters not whether he be a nominal party to the cause or not if his situation is such as to place him in the class of those affected. The hard and fast rule of the common law requiring the parties to a cause to be formally before the court has never been a part of the chancery practice when nothing more is involved than a decree distributing the cost of the litigation.

In equity, this is often a practical matter as much as a legal one and all Sorts of distinctions have been observed. Daniel’s Chancery Pleading and Practice (2nd Ed.) 1434-1440, 2 Street Federal Equity Practice, paragraphs 2033 to 2048. In the case at bar, Tenney sued as the representative of more than 170 of the 232 lot owners affected. His suit resulted in liberating their lands from void liens imposed by the City.

To hold that those likewise affected as Tenney cannot be required to bear their portion of the burden is to admit that equity practice is effete and has not kept pace with the factual situations that precipitate litigation. It is not essential that equity travel on the back of an ass to preserve due process. If those who administer it insist that it travel in this fashion, litigants who travel by the motor route will find other means to dispense equity. In this pronouncement, we are supported by Trustees of Internal Improvement Fund v. Greenough, 105 U. S. 527, 26 L. Ed. 1157; Central R. R. and Bkg. Co.

Pettus, 113 U. S. 116, 105 Sup. Ct. 387, 28 L. Ed. 915; and Sprague v. Ticonic Nat. Bank, 307 U. S. 161, 59 Sup. Ct. 777, 83 L. Ed. 1184. These were class suits in which trust funds were brought into the court by a nominal party but in which all of the class were entitled to participate. It was not questioned that all in the class had their rights adjudicated by the litigation. The court held that all should help bear the - burden of the litigation on the theory that their rights were adjudicated and that it would be unconscionable not to require them to help. We think these cases conclude the case at bar.

The gist of the matter is one of equity and the judgment is not assailed by any one affected by it. As to the fee, the record discloses that the attorneys here represented more than 170 of the 232 claimants who contracted on a contingent basis for one third of the amount recovered. It is shown that the recovery was $152,168.18, $98,921.55 of which went to the clients of counsel employed here.

Considering the amount of the claims, the difficulties encountered, the expense attorneys are forced to incur, and the fact that the litigation ran over a period of four years, the contract was not exorbitant and was not out of line with the usual run of such contracts. There was ample evidence to support the reasonableness of the contract. If there had been nothing more than prosecuting a law suit to recover this amount, the fee might be exorbitant but that is not the case. The liens had to be shown to be illegal. Counsel took a chance on showing this.

If they had failed they would have been out their labor and expenses for nothing. They have been out of any compensation for four years, must bear the expense of the litigation and when they get this paid including other charges in the way of income taxes, office expense, etc., the fee will be a modest one for the service rendered.

It was agreed to freely and voluntarily by those who are benefitted and will shock the conscience of no one when all the elements affecting are considered: It is our conclusion that the interlocutory writ of certiorari be granted and that the order or decree of October 9th, 1942, (dated by mistake September 9th, 1942) should be and is hereby quashed, and that the decree of August 3 be reinstated with directions to the chancellor to proceed as directed in this opinion. It is so ordered. BROWN, C. J., WHITFIELD, BUFORD and ADAMS, JJ., concur. CHAPMAN, J., concurs specially. THOMAS, J., agrees to conclusion.