27 Wash. 250 | Wash. | 1902
The opinion of the court was delivered by
Martha Schultheis was appointed general guardian of her infant son, Arthur Kornetsky, hy the superior court of Lincoln county, and qualified as such guardian. On the 23d day of February, 1897, she entered into a written contract with Hash & Hash, attorneys at law, as follows:
“Memorandum oe Contract, made and entered into this 23d day of Pebruary, 1897, by and between Hash & Hash, parties of the first part, and Martha Schultheis as the mother and guardian of Arthur Kornetsky and for his use and benefit, who is the child of Rudolph Gorkow, deceased, lately a brewer of the city of Spokane, state of Washington.
Witnesseth : That, whereas, the said Rudolph GorkQw was the father of my son, Arthur Kornetsky, now aged aged six years, and that the said child is illegitimate, not having been born in wedlock; and, whereas, the said Rudolph Gorkow at all times recognized said child as his son and also recognized him before competent witnesses; and,*252 whereas, the said Rudolph Gorkow died, leaving a will, and in said will made no reasonable provision for the said child; and, whereas, the said Arthur Kornetsky is the only heir of said Rudolph Gorkow, thereby having title to all of his property;
“And, whereas, I, the said Martha Schultheis, mother of said child, am anxious to contest said will for and on behalf of said child, and secure to him all the rights in said property as the sole heir of said Rudolph Gorkow, deceased ; and, whereas, I am unable to furnish the necessary funds and fees for legal advice and services, and am yet desirous of engaging the services of the firm of Rash & Rash, attorneys as aforesaid, for the purpose above mentioned.
“Row, therefore, in consideration of said Rash & Rash agreeing to undertake and to contest said will, and to do all things necessary to secure unto the said child Arthur Kornetsky, aforesaid, all his rights and property by virtue of his being the sole heir of said Gorkow, deceased, I agree to pay said Rash & Rash for such services one-half of all such money, property and effects as they may secure out of said estate of said Rudolph Gorkow, deceased, either by suit or other manner, after paying all expenses for litigation, and this shall be in full compensation for services rendered by said Rash & Rash herein, after I have advanced to said Rash and Rash all costs incurred in said litigation; that I, Martha Kornetsky, now Martha Schultheis, the mother of Arthur Kornetsky, have no means of engaging counsel or attorneys for the purpose of litigating this claim, therefore this consideration is contingent upon their gaining anything out. of actual costs incurred, such costs being payable by me to said Rash & Rash.
“In witness whereof, we have hereunto set our hands and seals the year and day first above written.
Rash & Rash, (Seal)
Martha Schultheis, (Seal)
As Guardian of Arthur Kornetsky. Jos. Schultheis.
Signed, sealed and delivered in presence of Paul O. Dormitzer.”
Section 4769, Bal. Code, provides as follows:
“The attorney in an action or special proceeding may be changed at any time before judgment or final determination as follows: ... 2. Upon the order of the court, or a judge thereof, on the application of the client, or for other sufficient- cause; but no such change can be made until the charges of such attorney have been paid by the party asking such change to be made.”
Under this provision of the statute it is clear that, the court may remove an attorney in a cause, and substitute another, at any time before final judgment, upon application of the client to the court therefor, provided the charges of such attorney have been first paid. The court may, for cause, also, make such order. In this case the lower court proceeded upon the theory that there was no cause shown in the petition, but that the client, was entitled to the removal, as a matter of course, if the charges of the attorney had been paid as alleged; and this was the only issue before the court. Ho special method of notice is required in order to give the court jurisdiction of matters of this kind. “As a general rule it would seem that a motion is, the proper form of application for a substitution of attorneys.” 20 Enc. Pl. & Pr., p. 1014. The notice in this casé was issued by citation. There can be no valid objection to this form of notice. The attorney was entitled to reasonable notice of the application. Whether it was the form here adopted, or some other, is immaterial, so long as reasonable notice was given.
2. At the trial the court declined to receive the contract in evidence upon the ground stated that the contract was
These authorities, however, bold that the guardian is nevertheless personally liable. They do not seem to us to be in point upon the question presented here. Martha Schultheis was the mother. She was also' appointed gen
In the case of Taylor v. Bemiss, 110 U. S. 42 (3 Sup. Ct. 441), where the validity of a contract arose upon an agreement similar to the one in question here, the'rule is laid down that, while contracts for contingent fees are attended with suspicion, they are not void, “and where it can be shown that they are obtained from the suitor by any undue influence of the attorney over the client-, or by any fraud or imposition, or that the compensation is clearly excessive, so as to amount to extortion,. the court will in a proper case protect the party aggrieved.” In re Hynes, 105 N. Y. 560 (12 N. E. 60), where a contract was entered into by the general guardian of two minor children wherein the guardian contracted for herself and the children and agreed to pay to the attorney a sum of money equal to one-third of the value of all property recovered
“There can be no doubt of the authority of a guardian in socage to make a contract such as this.....TÜb right to the possession of the real estate of the ward carries with it a corresponding duty to obtain such possession, and, if wrongfully withheld, the guardian should sue for it. In imposing this duty upon the guardian the law necessarily gives to him the right to employ counsel, and, of course, to make a contract for his compensation.”
See, also, Jeffries v. Mutual Life Ins. Co., 110 U. S. 305 (4 Sup. Ct. 8) ; Weeks, Attorneys (2d ed.), § 350 et seq.; 3 Am. & Eng. Enc. Law (2d ed.), p. 440. It follows, therefore, since the contract appeared valid upon its face, and since the parties had power to make it, the court below could not disregard it, and, in violation of its terms, compensate the attorneys by the rule of quantum meruit. If they Avere entitled to be paid a reasonable fee, Avhich had been agreed upon, that fee should be determined by the terms of the contract and paid, before the court, in the absence of a shoAving for cause, could remove them as attorneys for the guardian. Payette v. Willis, 23 Wash. 299 (63 Pac. 254).
The cause will be reversed and remanded to the lower court, with instructions to permit appellants to file an answer to the petition, if they desire to do so, and thereupon to determine what compensation appellants are entitled to under the contract; and, after deducting the amount already received, require the payment of any balance due the attorneys, if any there be; or, if counsel have received more than the court shall find they are entitled to under the contract, that an order be made requiring the return of the excess to the respondent.
Reavis, C. J., and Fullerton, Anders, Dunbar White and Hadley, JJ., concur.