89 W. Va. 634 | W. Va. | 1921
In a complaint duly verified and filed with a justice of Roane County, Stella M. Showen, a minor and unmarried, charged Earl Bowers with being the father of a child born unto her, and on May 12, 1919, he appeared in person and by counsel in the circuit court of the county and confessed the truth of .the accusation, H. C. Purgeson being present and representing the county court and Thomas P. Ryan, an attorney at law, the mother of the. child. Acting upon the complaint and confession, the circuit court entered judgment against Bowers for $45.00, which amount he then paid, and required him to pay monthly thereafter $7.50, and to enter into a bond, which he did, in the penalty of $1,000.00, with sufficient surety and conditioned upon the prompt compliance with the order.
Sometime prior to May 18, 1921, he having in the meantime paid the monthly installments, Bowers notified the child’s mother and the county court of his intention to move the circuit court on that day to vacate the judgment and ex
To the petition of the mother’s next friend the persons prohibited have not appeared, and the petitioner appeared only to move its dismissal, and on that motion no action has so far been taken, and the Ryan petition remains unanswered.
In this jurisdiction there is and can be no question as to the equitable right of an attorney to claim and have his fees secured to him out of a judgment or recovery he has been instrumental in securing for his client in a particular suit, he, to that extent, being regarded as an equitable assignee of the judgment or decree. Renick v. Ludington, 16 W. Va. 378; Bent v. Lipscomb, 45 W. Va. 183; Hazeltine v. Keenan, 54 W. Va. 600; Fisher v. Mylius, 62 W. Va. 19. If the client does not obstruct the prosecution of the action or suit, and
There are authorities that criticise as inaccurate the use of the term “lien” in a ease of this kind. They prefer rather to treat what is thus described as the claim of an attorney to the equitable interference of the court, having jurisdiction of the parties and judgment, to hold and control it as a security for his protection, because of his official relation to the court. This is the definition given by Baron Parke in Barker v. St. Quentin, 12 M. &. W. 441, 152 Reprints 1270. That term, however, is the one ordinarily used in most decisions.
In this case,' as already remarked, Ryan in his petition alleges a collusive and fraudulent settlement of the judgment he was one of the active agents in procuring, the design and effect of the settlement being, he says, to defeat the collection of his fees, payment of which is secured by a lien on the judgment sought to be annulled, after the adjournment of the term at which it was rendered. Courts favor and encourage settlements between parties to a controversy to avoid the vexation and expense of litigation, but look with disfavor, as in other cases, upon a settlement procured by fraud or imposition, and particularly, when designed to delay, hinder or defeat enforcement of the rights of others vitally interested in the subject matter of the controversy. The rule favoring compromise settlements does not apply in furtherance of a fraudulent design, but only where the rights and interests of the parties immediately concerned, whether legal or equitable, have in good faith been observed and respected. Weeks v. Wayne County Circuit Judges, 73 Mich. 256. The case cited is only one of many- which sanction both rules, judicial en
Another question arises, can there be a lien for attorney’s fees upon a judgment in a bastardy proceeding? The authorities answering that question are few. Counsel cite none and but two were found in this investigation, Costigan v. Stewart, 76 Kan. 352, 91 Pac. 83, 11 L. R. A. (N. S.) 630, and note; Taylor v. Stull, 75 Neb. 295, 297,112 N. W. 577. The decision in the Taylor-Stull case, however, depended upon the proper construction of a general statute providing for liens of ai-tones ’ upon giving notice of the lien to the parties interested in the result of the litigation. Each of the two eases deal with liens in bastardy proceedings, and they concur in sustaining the liens as in other litigated controversies. The contention in both was that the mother was not the owner of the judgment or of any 'interest in the fund it represented if paid into the treasury of the court, but was a mere trustee, the child being the beneficiary. This argument was •countered in this way in Taylor v. Stull: it is doubtless true that in a measure she acts in a trust capacity, and a judgment awarded in such a ease is largely for the benefit of and for the support of the bastard child, but the mother in such proceeding has a beneficial interest in the judgment. She is liable for the support of the child and to the extent that she recovers from the father her burdens are lessened, etc. The money represented by the judgment here involved, however, was to be paid, and until the date of the compromise agreement was paid to the county court for repayment to the mother for the support and maintenance of the child and that court is not here asserting an interest in the fund or the right to receive and disburse any balance within its •control or any amount due and unpaid on the judgment. But if otherwise the county court would have no right or interest not possessed by the mother. She would still be liable for the maintenance of the child if able to bear that burden. There does not appear to be a substantial or meritorious dif
By what authority not applicable to judgments obtained in any other form of action or judicial proceeding may a circuit court on motion of either party, alter or annul a judgment, obtained in a bastardy proceeding after the end of the-term at which the judgment was rendered, • as in this case ?' Although a court may at any time during the term set aside-a judgment rendered within the term, there is no authority for doing so after the expiration of the term, except upon motion as provided by section 5, chapter 134, Code, or by bill of review for fraud or' for correction of clerical errors in some circumstances. Manion v. Fahy, 11 W. Va. 482; Morris v. Peyton, 29 W. Va. 201, or by an independent bill charging fraud in the judgment or decree. It is evident, therefore, that the motion to dismiss the proceeding in bastardy for the annulment of the judgment or for the discharge of the rule in prohibition is not allowable upon the theory on which the motions are predicated. It is fair to say, however, though already remarked, that the circuit court has. not ruled upon either of the first two motions and can not rule on the third, as it is not addressed to him.
As it is not within the province of this court to hear and determine in the first instance matters arising upon the petition of Thomas P. Ryan, our order will make the rule in-prohibition absolute, leaving open for trial in the. circuit court such issues upon the question of fraud in the Ryan pe- ’ tition as may seem appropriate in view of the principles of law herein set forth. •
Writ awarded.