Board of Com'rs Okfuskee County v. Hazelwood
192 P. 217
Okla.
1920
Check Treatment
RAMSEY, J.

J. C. Wright, county attorney of Okfuskee county, obtained a judgment in favor of the state of Oklahoma in the district court on May 22, 1911, against Rudd, for $1,050 on two forfeited appeal bonds, wherein Will Edwards had been convicted in the county court for selling liquor. An appeal from said judgment was prosecuted to this court and W. H. Dill, as surety, executed a supersedeas bond to stay execution on the judgment. The judgment was affirmed by this court on November 11, 1913, Defendant in error Tom Hazelwood was county attorney of Okfuskee county from the first Monday in January, 1913. until January, 1915. During his term of office Hazelwood filed suit against Dill, surety on the super-sedeas bond, and recovered a judgment on October 9, 1914, for $1,296.92. The said judgment was rendered in favor of the plaintiff in a ease styled “The State of Oklahoma, Plaintiff, v. W. H. Dill, Defendant.” The judgment contained the following order, to wit:

“It is further ordered that the clerk of tills court disburse the above named sum as follows, to wit: To the treasurer of Okfus-kee county for the use and benefit of the public school fund of said county $946.97. To Tom Hazelwood, county attorney, the sum of $315.65. To pay the costs in case No. 587, State of Oklahoma v. J. L. Rudd, in the sum of $34.30. and for costs in this case in the sum of $6.05.”

Dill paid to the clerk of the district court the sum of $400 on said judgment, where-lupon the clerk paid over to Hazelwood the sum of $315.65, same being 25 per cent, of the judgment. Plaintiff in error contends that Hazelwood was only entitled to 25 per cent, of the $400 collected during his term of office. The balance of the judgment was paid after Hazelwood’s term of office expired.

1. Under the provisions of section 1557, Rev. Laws 1910. providing that the county attorney, in addition to his annual salary, “shall receive twenty-five per cent, of all forfeited bonds and recognizances by him collected,” Hazlewood was not entitled to 25 per cent, of the judgment. He was only entitled to 25 per cent, of that part of the judgment actually collected by him during his term of office. Section 1557, Rev. Laws 1910, means exactly what it says, and it would be difficult to clarify its language.

“The meaning of the word ‘collect.’ as given by the lexicographers, is ‘to gather, to assemble.’ When used with reference to the collection of money, it often implies much *187 more than the mere act of receiving the money.” Hubbell v. Board of Commissioners, 13 N. M. 546, 86 Pac. 430; Purdy v. City of Independence, 75 Iowa, 356; 39 N. W. 641.

■The Indiana statute of 1876, prescribing certain fees for prosecuting attorneys, eon-tainéd this provision:-“And when.he prosecutes to final judgment against the defendant, ten per cent, on money collected,” as additional compensation; ' In The State v. Barron, 74 Ind. 374, the court held that the prosecuting attorney was not entitled “to any such per cent., unless it appeared that he had prosecuted to final judgment a suit for the recovery of the forfeited money, and, even then,' he would only be entitled to ten per cent, on the money collected on said judgment.” See, also, Ex parte Ford, 74 Ind. 415; The State ex rel. Attorney General v. Denny, 67 Ind. 148; The State ex rel. v. Stone, 72 Ala. 185; Knox v. The State, 9 Bax. (Tenn.) 202; Power v. Fleming County, 99 Ky. 200, 35 S. W. 541; Adams v. Bristol, 111 N. Y. Supp. 231.

2. Defendants contend that the judgment of the district court in the case against Dill is res judicata because by that judgment the court adjudged that Hazelwood was entitled to $315.65 and directed the clerk to pay him that sum. Neither the state nor county was a party to that part of the judgment directing the clerk to pay over to Hazelwood $315.65. Hazelwood was attorney for the state in that ease and as county attorney was the legal representative of the county. His personal interest was adverse to the state and county, and insofar as the judgment awards Hazelwood $315.65, it is not 'binding on the state or- county and not res judicata. Hazelwood was not the plaintiff in the action, and there is nothing in the agreed statement of facts to show that the state or county was represented by any independent counsel. Neither the state nor countv had any opportunity to defend against Hazle-wood’s claim.

Well-settled principles of public policy forbid courts, in the absence -of statutory authority or consent of the attorney’s client, to adjudge and decree the attorney a portion of the proceeds of the judgment recovered by the attorney for his client. The relation of attorney and client is one of trust and confidence requiring a high degree of fidelity and good faith. Even in transactions between attorney and client the burden of proof is upon the attorney to prove fairness and the best of faith and that the transaction between him and his client was uninflu-, enced by the relationship. There is no incapacity for dealing with a client, but there is absolute incapacity- of an -attorney to deal for his own interest in the subject-matter of the litigation without his client’s knowledge and consent.- Payne v. Beard, 247 Fed. 247; Hansen v. Sjostrom, 260 Fed. 460; Herman v. Hall, 217 Fed. 947; Robertson v. Chapman, 152 U. S. 673, 38 L. Ed. 592. In a transaction by an attorney of this kind, where the client was neither consulted nor represented by himself or an authorized agent, the question of good faith is not inquired into. The door is shut to all investigation. On the principle that a man cannot serve two masters, especially where self-interest is involved, the transaction is vitiated by the law, irrespective of its merits, fairness, or good faith; and whether it is injurious to the client is immaterial. The law does not stop to speculate upon the probabilities that the attorney resisted temptation ; it removes the temptation by proclaiming in advance that he shall not deal for himself, without the knowledge and consent of his client, with the subject-matter intrusted to him and involved in his representation ■ as attorney. See Harris v. Beaver, 74 Ky. 254; Michoud v. Girod, 4 How. 503, 11 L. Ed. 1076; Thornton on Attys., secs. 164 and 166; Kimball v. Raney, 80 Am. St. Rep. 548; Cunningham v. Jones, 1 Am. St. Rep. 257.

3. The clerk of the court, in paying over to Hazelwood under the direction of the judgment, $315.65, instead of $100, acted ministerially as the amanuensis of the court. Hirsh v. Twyford, 40 Okla. 220, 139 Pac. 313. But the original wrong was committed by Hazelwood in either procuring the court to make the order directing the clerk to pay him $315.65, or permitting the court to make such order. He had no right to the $215.65, -and his acceptance of that amount in excess of the amount due him constituted the collection of illegal fees and compensation by virtue of his office, for which he and his bondsmen are responsible. Hughes et al. v. Board of Commissioners, 50 Okla. 410, 150 Pac. 1029. The judgment of the trial court is reversed, -and the cause remanded, with directions to the court to enter judgment on the agreed facts against Hazelwood and his bondsmen, J. L. Sandlin and J. N. Jones.

HARRISON, Y. C. J„ and KANE, PITCH-FORD, JOHNSON, and HIGGINS, JJ., concur.