28 Wash. 65 | Wash. | 1902
The; opinion of the court was delivered by
— Respondents, Alex M. Winston, as guardian ad litem of Emil Oestraicher, a minor, and Winston & Winston, attorneys, jointly filed a petition in the probate cause pending for the settlement of the above-entitled estate. In the petition it is alleged that by the will of said
“I hereby employ the firm of Winston & Winston to collect the legacies bequeathed to me and to my son, Emil, in the will of Rudolph Gorkow; to appear for us in all proceedings, suits, or contests concerning said legacy or will; and I agree to pay them out of said legacies, when collected, the sum of five hundred dollars. If the whole of said legacies are not collected, then I agree to pay them one dollar for every eight dollars collected.”
It is further alleged that, after the execution and delivery of said contract, by and with the consent of the petitioners and said Helene Crowe, the contract was orally changed in the following respect, towit: It was agreed that all of said sum of $500 was to be paid to the petitioners out of the legacy of said Helene Crowe; that in pursuance of said contract the petitioners entered an' appearance in the above entitled cause, and, upon the application of said Helene Crowe, procured the appointment of said Alex M. Winston as guardian ad litem aforesaid, and that he is now such guardian; that during a period of four
The contention of respondents is that the controversy concerns a fund of $500 which is in possession of the court, acting in its probate capacity, and that such court has the powea* to distribute the fund as between the parties. In support- of their contention they cite one case, — McKelvy’s Appeal, 108 Pa. St., 615. That was a suit in equity, in which attorneys sought to establish and enforce a lien for services upon certain money which had been brought into the court as the fruits of'the action. The lower court established the lien. On appeal the judgment was affirmed, but the court stated that it was not affirmed on the ground -that there could be a lien enforced, but on the ground that the existence of the fund was due in great measure to the professional services,- and that, to the extent of the •value of the-services, the attorney was the equitable owner Thereof, and that when it was discovered that an effort was being made to take the fund out of court by the aid of other counsel, thus ignoring the claim of the attorney, the court did right in laying its hands upon such a proceeding. It was held that, as a court of equity, it was administering a fund within its actual grasp, and was entirely competent
“An issue of fact, in an action for the recovery of money only, or of specific real or personal property, shall he tried hy a jury, unless a jury is waived, as provided by law, or a reference ordered, as provided by statute relating to referees.”
. It is contended by respondents that this is not an action for the recovery of money only. If it cannot be strictly said to be such, then it must be a proceeding for the recovery of specific personal property, since it seeks the recovery of a specific and designated fund of $500. The petition shows that the $500 is all that is left of the legacy in the hands of the court, and it is that particular $500 which is sought. In that view of the case, the relief sought comes within the statutory provision above, requiring actions for the recovery of specific personal property to be tried by jury. The relief sought is based upon a contract for the payment of money, the performance of which contract is in dispute. It is true the money was to be paid from a specifically named fund, but that certainly does not preclude a general recovery if payment of that fund is refused. In any view of the controversy suggested by the pleadings, we think it must be tried by a jury unless a jury is waived.
The attempt is made to have this matter determined in the cause pending before the court entitled, “In the Matter of the Estate of Rudolph Gorkow, Deceased.” That is a separate cause or proceeding standing upon the court’s docket for its own purposes, and other causes cannot be heard therein, but must be brought as separate and independent actions. It will therefore be necessary to dismiss
The judgment is reversed and the cause remanded, with instructions to the lower court to dismiss the petition.
■ Feavis, C. J\, and Fullerton, Dunbar, White, ’Anders and Mount, JL, concur.