281 F. 962 | 8th Cir. | 1922
It is alleged in the complaint, in substance, that the defendant (plaintiff in error) retained and employed the plaintiff (defendant in error), an attorney at law, and authorized him as her agent and attorney to protect her interests in the estate of her mother, Mathilda Cardoner, deceased, and to take all proper action to prevent one Joseph R. Wilson from securing letters of administration upon and possession of the property of said estate. It is alleged that plaintiff, pursuant to said employment, rendered services for the defendant as an attorney and as her agent in protecting her interests in said estate and in opposing the efforts of the said Wilson to obtain letters of administration upon said estate, and to secure possession of the estate without giving bond, and that in the performance of said' services he made certain expenditures of money for her use and benefit. It is alleged that as the agent of said defendant he employed Charles R. Bryce and Francis E. Wood, practicing attorneys,
The defendant in her answer in substance alleged that the plaintiff by correspondence represented to her that it was to her interest to oppose the appointment of said Wilson as executor of the last will of her mother; that believing and relying upon'these representations of the plaintiff, She authorized him to act as her attorney and to take steps to prevent the appointment of Wilson as such executor, but she denied that she authorized the plaintiff to employ associate- counsel to assist him in said matter. She alleged that the plaintiff, after having been authorized to act as her attorney, caused her to join in the petition theretofore filed by other persons asking the appointment of plaintiff as administrator with the will annexed of said estate and opposing the appointment of said Wilson as executor of said estate; she alleged that she never authorized the plaintiff to apply for the appointment of himself as administrator with the will annexed or to join with other persons in such application.
She alleged that it was in fact never to her interest to oppose the appointment of Wilson; that there was never any legal ground for opposing his appointment; that the said Wilson, during the course of said proceedings, voluntarily executed a bond as executor of said estate, and that if there had previously existed any cause to believe that it was to her interest to resist his appointment, which the defendant denied, the execution of said bond removed such cause; that having become dissatisfied with the course of the plaintiff as her attorney, she employed other counsel and advised plaintiff that she no longer wished to oppose the appointment of Wilson as executor of her mother’s estate ; that the said plaintiff, designing and intending to secure for himself the benefits and emoluments accruing to the administrator with the will annexed of said estate, refused to discontinue opposition to the appointment of said Wilson as executor and continued to insist upon his own appointment as such executor, and is still so insisting, over the objection and contrary to the wishes of the defendant; that the said Bryce and Wood, plaintiff’s assignors, have joined with the plaintiff in his acts of hostility to the interest of the defendant and in disregard of her directions to discontinue opposition to the appointment of said Wilson as executor.
The plaintiff filed a reply in which he admitted that he advised the defendant that the said Wilson was not a proper person to be executor of her mother’s will or to be intrusted with the control of the estate, and that his appointment as executor should be opposed. He denied that his representations induced the defendant to employ him to oppose the appointment of Wilson as executor, and alleged that she was moved to oppose Wilson’s appointment by information received from her mother prior to her death. He alleged that, being a creditor him
The suit was tried by the court without a jury. The court made special findings and gave judgment for the plaintiff. Defendant brings error to this court.
“The question of the allowance or refusal of amendments to the pleadings is one resting in the discretion of the trial court,, and is not reviewable in this court.” Philip Schneider Brewing Co. v. American Ice Mach. Co., 77 Fed. 138, 23 C. C. A. 89.
“The court erred in overruling defendant’s motion for judgment made and filed at the dose of the whole case, which said motion renewed the motion made by defendant at the close of plaintiff’s ease, and stated additional grounds. To which action of the court defendant duly excepted.”
“It is a familiar and an established rule of practice of the federal courts that in actions at law a bill of exceptions, stating the ruling and the exception, settled and signed by the trial judge, is indispensable to the review of rulings upon motions, oral or written.” Chicago Great Western R. Co. v. Le Valley, 233 Fed. 384, 147 C. C. A. 320.
The papers above mentioned were never settled and allowed as a bill of exceptions, nor authenticated by the trial judge as such, and, in addition to these defects, they contradict the certificate of the trial judge which is attached to the authenticated bill in the record. That certificate recites that the bill of exceptions to which it is attached contains all the evidence and all other proceedings had at the trial of the cause. The assignment of error based upon these unauthenticated documents printed in the record cannot be considered.
The assignments of error based upon the alleged refusal of the trial court to make requested findings which appear in the printed record outside of the bill of exceptions must also be disregarded and for the same reasons. The defendant could not possibly have been prejudiced by the rulings of the court in the admission and exclusion of testimony, and for that reason the assignments of error based upon such rulings do not call for and will not be given further notice.
“acting in plaintiff’s own behalf as a creditor of the estate and also at the request and by the directions of J. A. Reidy, one of the creditors, who was one of the original parties to the proceedings instituted to oppose Wilson’s appointment and procure the appointment of a creditor to administer upon the estate, continued the proceedings in the district court to final judgment therein, and, the said judgment being adverse,-thereafter duly took and perfected an appeal from the same to the Supreme Court of New Mexico, and are still prosecuting said appeal.”
It is the contention of the defendant that the plaintiff was bound, the moment he learned that the defendant did not seek a common end with Reidy, to cease opposition to the defendant’s wishes, or forfeit all right to compensation for past services. The relation of attorney and client has always been regarded as one of special trust and confidence. Loyalty to the interest of his client is not only the highest duty of an attorney, but it is an inescapable obligation. Stieglitz v. Settle (Cal. App.) 195 Pac. 705; Peirce v. Palmer, 31 R. I. 432, 77 Atl. 201, Ann. Cas. 1912B, 181; In re Boone (C. C.) 83 Fed. 944.
It is clear that the contention of the defendant would be sound, if it did not appear from the findings that the plaintiff and his associates represented other parties to this litigation besides the defendant. The court finds that the proceedings were instituted by other creditors of the estate; that the defendant retained the plaintiff and auhorized him as her attorney to take all proper steps necessary to prevent the appointment of Wilson as executor of said estate; that in pursuance of his employment the plaintiff joined the defendant as a party with himself and other creditors in the proceedings theretofore instituted for the purpose of opposing Wilson’s appointment; that thereafter, and while the proceedings were still pending, the defendant changed her mind and decided not to further oppose Wilson’s appointment as executor, but decided on the contrary to unite with him in seeking his appointment, and thereupon she discharged plaintiff and his associates and employed other counsel by whom she was dismissed from the proceedings. The duty which the plaintiff owed the defendant at this time must be determined by the obligation which he was under to his client or clients who instituted and still remained in the proceedings. ‘ The court has found:
That the proceedings were continued “at the request and by the direction of J. A. Reidy, one of the creditors, who was one of the original parties to the proceedings instituted to oppose Wilson’s appointment and procure the appointment of a creditor to administer upon the estate.”
The court also found:
“That the acts of the plaintiff and Francis E. Wood, in continuing the proceedings in the District Court, after the withdrawal of the defendant and ,her dismissal of them as her representatives was in furtherance of their employment for that purpose by the aforesaid J. A. Reidy, a creditor * * **968 and thé plaintiff and his associates at all times, both before and after their dismissal, acted in good faith.”
If, as the court in effect found, the plaintiff continued to prosecute the proceedings at the direction of Reidy, a creditor and an original party to the proceedings, in good faith, because of the obligation he was under to do so by virtue of his employment by Reidy, then in doing so neither he nor his associates forfeited the right to compensation for the services theretofore rendered by them in behalf of the defendant at her request.
Counsel for the defendant strenuously maintain that the findings of the trial court which we have been considering are without support in the evidence, but, as we have seen, that question is not before us for review.
We find no error in the record, and the judgment is affirmed.