Kappler v. Sumpter, 33 App. D.C. 404

Kappler v. Sumpter

33 App. D.C. 404 | D.C. Cir. | 1909

Mr. Chief Justice Shepard

delivered the opinion of the Court:

While it is difficult to perceive what benefit could possibly' accrue to the parties to the action by this proceeding on their behalf, because, as to one, the judgment had been entered giving him all that he sought, and as to the other two, judgment was ready to be entered upon the agreement, still it was their right to change their attorneys in the case and resort to other proceedings if they preferred to do so. A party to a suit can change his attorney when he sees fit, assuming the responsibility, of course, of his breach of his contract with his former attorney. Be Paschal (Texas v. White) 10 Wall. 483, 496, 19 L. ed. 992, 997.

It is within the province of the court to entertain a motion for substitution, and it may grant it upon or without condition. Where it is possible, under the circumstances of the particular case, to protect the former counsel by imposing some condition for that purpose, it seems that courts usually exercise their discretion to do so. In the absence of a bill of exceptions it is impossible to say whether the court could have imposed any condition upon the parties in favor of the appellants, but the *409situation would seem to show that it could not have done so effectually. Appellants were officers of the court, in the performance of their representative duties, and, as such, were subject to the jurisdiction, inherent in the court, to entertain this summary proceeding. They could not be máde parties to the action thereby. If they had been ordered to deliver up money in their possession upon which they claimed a lien for collection, or to surrender money paid as fees, or collateral security, a difficult question would be presented. From such an order, being final as to them, they might possibly have appealed as a matter of right. See Arnold v. Carter, 19 App. D. C. 259. That was a proceeding in equity, in the course of which the court ordered an attorney and trustee to pay over to parties money in his hands in which he claimed an interest, and for that reason was distinguished from the case of Hallam v. Oppenheimer, 3 App. D. C. 329, which denied appeal to trustees who had no direct interest involved in the decree. The order of the court was an incident of the orderly conduct of the case. It recognized the right of litigating parties to discharge their counsel and substitute others, regardless of contract. It could not and did not attempt to determine the right of appellants to redress for the breach of contract of employment, or for services actually rendered. For these they have their remedy.

It is argued by appellants that, by the terms of'the act of Congress, they are entitled to a lien upon the land which the parties may receive through their restoration to the rolls as members of the Indian tribes, and which they may lose the benefit of under this order. Granting the existence of such a lien, it could not be enforced in the pending action by any order therein; nor could it be taken away.

It seems that all such contracts with Indians are subject to the supervision and allowance of the Secretary of the Interior. All of the attorneys will probably have to go before him for a final approval and settlement of their contracts and claims for fees. And there is nothing in the orders complained of that would preclude inquiry by him into the several contracts of the attorneys, and the allowance of the same as may appear fair *410and just, to the full extent of the discretion committed to him by Congress in such matters. But, if the Secretary have no such discretionary power under the law, the parties will not be deprived of their remedies in the courts having jurisdiction in the premises.

It is unnecessary to discuss the other grounds of the motion. Bor the reasons given, the appeal will be dismissed with costs.

Dismissed.

A motion by the appellants for a rehearing was overruled June 4, 1909.