Staggenborg v. Bailey

118 Ky. 301 | Ky. Ct. App. | 1904

Opinion of the court by

Chief Justice BURNAM

Reversing.

By the will of Bridget Kelley, a widow, a small estate was devised in trust for the benefit of her only child, Anna Staggenborg, during ber life, with remainder over to her three infant granddaughters, children of Anna Staggenborg. The will was probated by order of the Campbell county court. Anna Staggenborg prosecuted an appeal therefrom to the Campbell circuit court. Upon her motion, S. Ü. Bailey, an attorney, was appointed guardian ad litem for the infant defendants, in the absence of a statutory guardian. A trial before a jury resulted in a judgment invalidating the will. S. C. Bailey, as guardian ad litem, at the termination of the trial in the circuit court was allowed on his motion $50 for his services to be taxed as cost, and prosecuted an appeal as guardian ad lit&m from the judgment of the circuit court to this court in behalf of the infant defendants, which resulted in an affirmance of the judgment. Staggenborg, etc., v. Staggenborg, 77 S. W., 178, 25 Ky. Law Rep., 1073. He subsequently filed the mandate of affirmance in the lower court, and moved for an additional allowance for his services and ■expenses as guardian ad lit&m. . Over the objection of Anna .Staggenborg, he was allowed an additional fee of $300, the ■cost of ihe transcript of the record and the necessary cost Incurred by him in the Court of Appeals, and a judgment was entered directing the payment to him of these various sums, and that they should be taxed as cost and paid by plaintiff, who has appealed to this court. She asks a reversal on the ground that the circuit court had no jurisdiction to make the order for the additional allowance to the appellee after the affirmance of the judgment of the lower court by this court.

The duties of a guardian ad Ut&m do not terminate with the rendition of a judgment in the trial court, but he may, when he thinks it to be to the interest of the infant defendants, take an appeal therefrom, and his duties continue until the final determination of the cause, unless removed by the court, or terminated by the arrival of the infant at the age of majority. See 15 Am. & Eng. Ency. of Law, 15; Reed, etc., v. Louisville Bridge Co,. 71 Ky. 69; Hussey v. Sargent, etc., 116 Ky., 53, 75 S. W., 211, 25 Ky. Law Rep., 315. And there was no final determination of the litigation until the mandate of affirmance from this court was filed in the circuit court. In many States of the Union the allowance to a guardian ad- litem is made by tlie court wherein the services were rendered. But in this State it has been expressly decided that the allowance to a guardian ad litem for the services rendered by him in the entire ease must be made by the court wherein he was appointed. See Robinson v. Fidelity Trust & Safety Vault Co., 11 S. W., 806, 11 Ky. Law Rep., 313, and Williams v. Williams, 72 S. W., 271, 21 Ky. Law Rep., 1753. Subsection 1 of section 38 of the Civil Code provides that: “The court shall allow to the guardian ad litem a reasonable fee for his services, to be paid by the plaintiff, and taxed as cost. The affidavit of such guardian or other person, or other competent evidence, is admissible to prove the services rendered, but not to prove their value. The court must decide concerning such value, without reference to the opinions of the parties or other witnesses.” We are of the opinion that the lower court, upon the filing of the mandate of affirmance, had jurisdiction to entertain a motion for an additional allowance to the guardian aA litem for 'services rendered in this court. In making such allowance the court should have in view the character of the litigation, the amount involved, the ■ labor performed, and the results achieved by the guardian ad litem. It seems to us that the services of the guardian ad litem in the lower court were certainly as onerous and valuable as those performed by him in this court, and for these services he was allowed $50. His services in this court consisted in the main of preparing and filing a short brief, and the appeal resulted in the same judgment as that entered in the trial court, and after a 'careful examination of the record upon the prior appeal we conclude that the appellee should have been allowed for his services in this court $50 and his cost and necessary expenses incident to the appeal in addition to the $50 which had! been previously allowed him for services in the circuit court, and the judgment is therefore reversed, and cause remanded for a judgment in conformity with this opinion.