123 Neb. 280 | Neb. | 1932
This is a suit in equity to redress a wrong growing out of an- abuse of an attorney’s confidential relation to his
“We conclude that the judgment of the district court is erroneous and the same is reversed, with directions to try and determine the question of competency of plaintiff, and, if found incompetent, render judgment dismissing the action; if found competent, to enter judgment for plaintiff vacating the judgment of the county court dated April 17, 1928, and remanding the case to the county court, with instructions to make final settlement of the guardian’s account, discharge the guardian and order the return of the property in his possession to plaintiff.” Hall v. Hall, 122 Neb. 228.
“In an action in equity to set aside a decree in such proceeding finding plaintiff incompetent and appointing a guardian, for fraud or upon other grounds of equitable cognizance, it is not necessary to prove participation by petitioners in the fraud or wrong, since they have no rights entitled to protection under the decree.” Hall v. Hall, 122 Neb. 228.
Petitioners for the appointment of a guardian on the ground of their father’s incompetency insist that there is no evidence of fraud on their part and that the ruling “they have no rights entitled to protection under the decree” is a departure from former holdings in Tierney v. Tierney, 81 Neb. 193, and Prante v. Lompe, 77 Neb. 377. In those cases it was held in effect that petitioners for the appointment of a guardian for a person on the ground that the latter is incompetent are proper parties in the sense that they may appeal from an adverse decision. In so far as the syllabus quoted and the former opinion in the case at bar conflict with the opinions in the two former cases cited, they are withdrawn. It does not follow, however, that the county and district courts were without power to redress the wrong growing out of the failure of counsel to fully respect the confidential relation of the attorney to his client. This question was not presented or decided in the Tierney and Prante cases, but is the determining factor in the controversy under consideration. The children of Hall, without any present interest in his property, set in motion the judicial machinery that deprived him of the power to manage his own business affairs. If the decree of incompetency and
“The rules of equity which determine the consequences of acts performed by a fiduciary extend to all cases, where, on one hand, confidence is properly reposed, and, on the other, knowledge or authority or influence arises from the fiduciary relation.” Nebraska Power Co. v. Koenig,, 93 Neb. 68.
This principle applies in full force to the relation of attorney and client. Hamilton v. Allen, 86 Neb. 401. The judgment of the district court in the present case was properly reversed on the following ground:
“Where a supposed incompetent, being misled by the advice of his attorneys, makes no defense to proceedings in which he is charged with incompetency, and consents to the appointment of one of his attorneys as guardian, who secured substantial pecuniary benefits thereby, a court of equity will set aside such proceedings as for constructive fraud growing out of the confidential relation of attorney and client, even though, as in this case, the attorney acted in perfect good faith.” Hall v. Hall, 122 Neb. 228.
On this feature of the present case there does not seem to be any tenable ground for a rehearing.
Misunderstanding of the evidence as indicated by misstatements thereof in the opinion is also urged as a ground for a rehearing. In this connection attention is called to inaccuracies in stating that John Fowler was an officer of the Federal Trust Company, with whom plaintiff had done business exclusively for more than ten years, and in stating that Ledwith, as attorney for the Federal Trust Company and guardian for Hall, advised Hall to make a will naming the Federal Trust Company as executor, anticipating probable employment later on as attorney for the trust company. These and other inadvertent
Reversed.