45 Kan. 462 | Kan. | 1891
Opinion by
This action was commenced in the district court of Shawnee county, to enforce the payment of an attorney’s lien. As a first cause of action, the claim is made in the “amended and consolidated” petition, that one George P. White held a certificate of membership in the Southwestern Mutual Benevolent Association on the life of his wife, who had died, for the sum of $2,500; that the plaintiff, who was a practicing attorney, had made a contract with White whereby it was agreed between them that the plaintiff was to collect said certificate, and for his services was to have a sum equal to 50 per cent, of the amount of said certificate;
For a second cause of action, the plaintiff declares upon a bond given by the insurance company, under chapter 131 of the Laws of 1885, and as a breach of the bond says: “That they failed, neglected and refused to proper payment and disbursement make, of the sum of twelve hundred and fifty dollars, which came into their hands, to the legitimate purposes of the association, but caused the same to be paid to George P. White and J. W. Brown.” The action is against the association and the bondsmen, and George P. White, but no service was made upon him. A demurrer was interposed to this petition, on the ground that several causes of action were improperly joined, and that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff in error brings the case here, and asks a reversal of this ruling of the court below.
A number of errors are assigned to the rulings of the court prior to the filing of the last amended petition. It is not necessary for us to pass upon them, because the plaintiff, in filing his pleading and complying with the order of the court, waived any right to complain of the order. Having filed his “consolidated and amended petition,” no substantial right of his has been thereby prejudicially affected. (Lindh v. Crowley, 26 Kas. 47.)
Can the cause of action for an attorney’s lien be united with an action on the bond given by the association, under
It appears from the record that no service was made upon the defendant George P. White. We think he is a necessary party in that branch of this action in regard to the establishment of the plaintiff’s right to an attorney’s lien, and would suggest that service should be made upon him, before further action is taken in the case.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.