Garner v. I. E. Schilling Co.

• Citation: 174 So. 837,128 Fla. 353
• Parties: GARNER v. I. E. SCHILLING CO.
• Decision Date: 02 June 1937
• Court: United States State Supreme Court of Florida

174 So. 837

128 Fla. 353

GARNER v. I. E. SCHILLING CO.

Florida Supreme Court

June 2, 1937

Error to Circuit Court, Dade County; H. F. Atkinson, Judge.

Suit by Preston Garner against the I. E. Schilling Company. To review an adverse judgment, the plaintiff brings error.

Affirmed.

COUNSEL

Edward L. Semple, of Miami, for plaintiff in error.

McKay Dixon & DeJarnette, of Miami, for defendant in error.

OPINION

ELLIS Chief Justice.

Preston Garner, a minor, suing by his father and next friend, John Garner, recovered a judgment in the circuit court of the Eleventh judicial circuit for Dade county on the 14th day of September, 1927, against I. E. Schilling Company a Florida corporation, in the sum of $2,250 and costs.

It appears from the record in this case that the next friend, or prochein ami, of Preston Garner engaged an attorney at law to conduct the litigation in behalf of the minor.

In September, 1933, Preston Garner, having attained his majority, applied for, by his attorney, and obtained a writ of scire facias to review the judgment, which, as it was said, had become dormant.

The writ was issued on the 21st of September, 1933, directed to the I. E. Schilling Company, which was commanded to appear before the circuit court to show why the said Preston Garner ought not to have his execution against it on the said judgment.

Neither the application or the writ itself alleged that the judgment had not been paid.

A demurrer to the writ was interposed by the judgment debtor. No order seems to have been made upon that demurrer, and on the 11th of January, 1934, by stipulation of the parties, it was agreed that the writ should be amended by inserting the words 'and the said judgment remains unpaid.' It was further stipulated that the demurrer be withdrawn and defendant be permitted to interpose his plea to the writ.

The plea averred that on September 24, 1927, the defendant paid the judgment which Preston Garner, the minor, had obtained against the defendant, and that at the time of payment there was entered a satisfaction of the said judgment by the attorney of record for the plaintiff, and that such satisfaction of the judgment was recorded in the office of the clerk of the circuit court of Dade county, Fla. A certified copy of the satisfaction was attached to the plea and made a part of it, and recites, that in September, 1927, Preston Garner, a minor, suing by his father and next friend, recovered a judgment for the amount stated against the I. E. Schilling Company, and that since said date, the defendant had satisfied the said judgment in full by payment; wherefore Dan Chappell, as attorney of record for the plaintiff, did by said instrument acknowledge payment in full of the judgment and consented that the same be satisfied of record. That written acknowledgment of payment and satisfaction of the judgment was signed by Dan Chappell, described as attorney of record for the plaintiff, and was witnessed by two witnesses, and the execution of it acknowledged by Dan Chappell before a notary public.

The plaintiff, Preston Garner, interposed his demurrer to the plea, and followed the same on the same date by motion to strike it. The grounds upon which the demurrer were based and upon which the motion to strike rested are identical and are: First, that the defense of payment to the attorney of record for a minor of a judgment obtained by him, and the attorney's satisfaction of the judgment, does not constitute a proper payment and satisfaction of the judgment; and, second, that a minor who recovers a judgment against a person when suing by next friend is not bound by payment of the judgment to the attorney of record and satisfaction thereby by such attorney.

The judge of the court, by an order entered on the same day, overruled the demurrer, and in the order overruling the demurrer stated that: 'the writ itself, fails to allege that the proceeds of the judgment were not paid to him (Plaintiff) or expended for his (plaintiff's) use and benefit during his minority or thereafter.'

The plaintiff declining to amend the writ, the court by an order quashed, vacated, and set the writ aside.

A writ of error was taken to that judgment by Preston Garner.

The question presented to this court is whether an attorney of record for a minor plaintiff, who sues by his next friend or prochein ami and obtains a money judgment against a third person, may, in his capacity of attorney employed by the prochein ami, appointed for the minor to conduct the latter's cause, receive payment of the money judgment and enter satisfaction thereof of record.

Our investigation of the question leads us to the conclusion that such question should be answered in the affirmative. While it is true that the courts, with commendable solicitude for the interests of minors whose business at times may require them to seek adjudication of their rights in the established courts of the country, will require that an adult person of reasonable judgment and integrity should conduct the litigation for the minor, as the latter's guardian ad litem, prochein ami, or next friend, and in many phases of the litigation will require that the prochein ami obtain an order from the court approving certain proposed compromises or waiver of the minor's rights, but the general rule is that the court recognizes the right of the prochein ami to select and employ an attorney at law to conduct the litigation in behalf of the minor, because it is not to be presumed that the prochein ami, while representing in his name the minor who is the real party in the controversy, is himself an attorney at law and qualified as an officer of the court to conduct the litigation in the interest of the minor.

Therefore it follows that the attorney so engaged by the prochein ami is in fact the attorney of record for the real party in interest, who is the minor, and as such attorney of record is empowered as an officer of the court, in the interests of his client, to exercise all the powers and duties of an attorney of record in any litigation except possibly the matter of compromise and settlement and waiver of the rights of...