Costigan v. Stewart

• Decision Date: 05 July 1907
• Docket Number: 15,169
• Parties: W. J. COSTIGAN v. ANNA B. STEWART et al
• Court: Kansas Supreme Court

91 P. 83

76 Kan. 353

W. J. COSTIGAN v. ANNA B. STEWART et al

No. 15,169

Supreme Court of Kansas

July 5, 1907

Decided July, 1907.

Error from Franklin district court; CHARLES A. SMART, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

ATTORNEYS--Fees--Lien on Fund Recovered in a Bastardy Proceeding. An attorney who is employed by the mother of an illegitimate child to assist in the prosecution of bastardy proceedings, under a contract by which he is to be paid an attorney's fee out of the fund recovered, is entitled to a lien upon such fund for his fees.

Benson & Harris, and Ferry & Doran, for plaintiff in error.

J. W Deford, for defendant in error W. B. Kiler.

OPINION

PORTER, J.:

The only question here is whether an attorney employed by the mother to assist in the prosecution of bastardy proceedings is entitled to a lien for his fees upon the money judgment recovered in the proceeding against the father.

Emanuel B. Stewart was convicted in the district court of Franklin county of being the father of a bastard child born to Anna B. Stewart. Defendant was required to pay the sum of $ 1200 for the support and maintenance of the child. On the order of the court, W. B. Kiler was appointed trustee of the fund, which defendant at once paid into court. W. J. Costigan was employed by the prosecuting witness to assist the county attorney in the prosecution, and appeared in the proceedings before the justice and in the district court. She agreed to pay him as an attorney's fee one-third of the amount recovered. It appears that an offer of $ 500, made by defendant while the case was pending, would have been accepted by the prosecuting witness in full settlement of the matter except for the advice of Mr. Costigan, and there is no question that he performed the services for which he was retained. When the order was made appointing a trustee for the fund Mr. Costigan informed the court of his contract and asked to have his fee paid out of the fund. The court stated that the fund was still in the hands of the court and required Mr. Costigan to make a formal application, with proof. This was done, and a hearing was had upon affidavits, the trustee resisting any allowance of fees, while the mother of the child filed her affidavit stating that she had employed Mr. Costigan with the understanding that he was to receive one-third of the amount recovered and that she desired the fee paid to him. The court refused to make the allowance and held that the attorney was not entitled to any lien upon the fund for his fees. Mr. Costigan has brought the case to this court on error.

Courts have never doubted their authority to allow, nor hesitated to give, to an attorney a lien for his fees upon a fund which his labors have created or assisted to bring into existence, unless some consideration of public policy or other special reason stood in the way of such an equitable allowance.

There is nothing analogous in the doctrine of the cases which refuse an attorney a lien, upon money paid as alimony, for his fees for procuring the allowance. We have no quarrel with the principles announced in the case of Jordan v. Westerman, 62 Mich. 170, 28 N.W. 826, 4 Am. St. Rep. 836, or Lynde v. Lynde, 64 N.J.Eq. 736, 52 A. 694, 58 L. R. A. 471, 97 Am. St. Rep. 692, which are cited by defendant in error Kiler. There are valid reasons which control cases of that character but have no application to the present case. In the former case Westerman, the attorney, collected $ 4500 alimony, allowed to the wife by the court, and retained one-half. In the Lynde case the amount was $ 41,000 and the attorney claimed and retained one-half. In each case the court compelled the attorney to relinquish his claim upon the fund and pay the whole sum to his client, because public policy will not uphold a contract which tends toward the separation of husband and wife and which seeks to prevent the adjustment of marital difficulties. Besides, the court always has power to award fees to the attorney for the wife, and, in each of the above cases, it was held that a fraud had been practiced in withholding from the court the object and purpose for which the allowance was to be used.

While the proceedings are carried on in the name of the state, and the statute provides for the arrest and imprisonment under certain circumstances of the person charged with being the father of an illegitimate child, the rules of evidence and the procedure are governed by the law regulating civil actions. The proceeding is therefore more in the nature of a civil action. The right to prosecute has been held optional with the mother. (The State, ex rel., v. Young, 32 Kan. 292, 4 P. 309.) Not only this, but she controls the prosecution and may without let or hindrance accept satisfaction and dismiss the proceedings. (Moore v. The State, ex rel., 47 Kan. 772, 28 P. 1072, 17 L. R. A. 714; Poole v. French, 71 Kan. 391, 80 P. 997.) In the opinion in the latter case it was said:

"The prosecution is under the direction of the relatrix; she may accept satisfaction and dismiss the action. (Gleason, Sheriff, v. Comm'rs of McPherson Co., 30 Kan. 492, 2 P. 644; The State v. Baker, 65 Kan. 117, 69 P. 170.) The money judgment is collectable by her, and her only, if she be alive. Whether it be called an action or a special proceeding matters little. It is being prosecuted by a party who has a right under the statute so to prosecute against another party, who is called a defendant, for the enforcement of a right given to her by the statute." (Page 394.)

Defendant in error Kiler also cites the note to the case of Crafts v. Carr, 24 R.I. 397, in 96 Am. St. Rep. 721, 731, as to the liability of an infant for attorney's fees as necessaries furnished in actions brought in his behalf. None of the cases in the note is in point, for the reason that the service for which the allowance in this case is asked was not performed for or on behalf of the infant but on behalf of the mother, who entered into the contract of employment. It is beside the whole question to contend that, because the judgment is in theory to be used for the support and maintenance of the child, the mother cannot out of the amount recovered pay to an attorney his fee for prosecuting the action. The statute makes no provision with respect to the manner in which the mother shall expend the money. When it is paid to her she may, so far as the statute is concerned, use it for any purpose of her own--may buy jewelry with it--notwithstanding the fact that her statutory right to maintain the action is based upon the theory that she is entitled to receive assistance from the father for the support and maintenance of the child. She has the statutory right to prosecute the action and recover although she may have independent means of her own, or even though the child has already been amply provided for. The fund recovered is hers for any and all purposes, and the child has no legal claim upon it or direct interest in it.

It is argued, however, that the mother has no pecuniary interest in the judgment, and it is said her only interest in the proceeding is to establish the parentage of the child. Such is not the law under our statute as declared by this court. In numerous former decisions the pecuniary interest of the mother in the fund has been recognized. In The State, ex rel., v. Reed, 46 Kan. 501 26 P. 956, the trial court gave...