192 P. 217 | Okla. | 1920
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 supersedeas 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 case 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 this court disburse the above named sum as follows, to wit: To the treasurer of Okfuskee 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 an said judgment, whereupon 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," Flazlewood 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,
The Indiana statute of 1876, prescribing certain fees for prosecuting attorneys, contained 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,
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 case 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 county bad any opportunity to defend against Hazlewood'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 uninfluenced by the I 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,
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,
HARRISON, V. C. J., and KANE, PITCHFORD, JOHNSON, and HIGGINS, JJ., concur. *188