Goodin v. Hays

• Decision Date: 05 October 1905
• Citation: 88 S.W. 1101
• Parties: GOODIN v. HAYS.
• Court: Kentucky Court of Appeals

88 S.W. 1101

GOODIN v. HAYS.

Court of Appeals of Kentucky.

October 5, 1905

"Not to be officially reported."

Appeal from Circuit Court, Garrard County.

Action by Mary Jane Goodin against John T. Hays. From a judgment for defendant, plaintiff appeals. Reversed.

S. B Dishman and Herndon & Swinebroad, for appellant.

J Smith Hays and Lewis Walker, for appellee.

HOBSON C.J.

In the year 1889 Mary Jane Goodin held two notes, one for $885 and one for $115, against solvent persons. Her husband was indebted to William Locke and J. H. Tinsley, who brought suit against him and attached the notes held by his wife. In that action a consent judgment was rendered subjecting the notes of Mrs. Goodin to the debt. She thereupon employed appellee John T. Hays, and he filed a petition for her to set aside the judgment. The circuit court sustained a demurrer to the petition, and he took an appeal to the superior court. On the appeal the petition was held good. No further contest was made in that action, and on the return of the case to the circuit court the consent judgment was set aside and the original action was then tried. The circuit court held that $724 of the notes belonged to Mrs. Goodin, and adjudged this much of the fund to her, but subjected the remainder of the fund to her husband's debt. She then appealed to this court, and it was held on the appeal that she was entitled to the whole fund. The controversy up to this time had simply been between her and her husband's creditors. She then filed suit against the makers of the notes. The sureties, who were the solvent parties, pleaded that they had been released by novation. A trial was had on this issue, resulting in a judgment in her favor. The sureties appealed the case to this court, and it was here affirmed, with 10 per cent. damages; they having superseded the judgment. Appellee, John T. Hays, was her attorney in all this litigation. He collected from one of the sureties on August 9, 1899, about 10 years after he was first employed, $793, which was half of the larger note, with interest. It would seem that he could have collected the entire debt from this surety, but undertook to collect the other half of the debt from the other surety, and in doing this got into litigation with him in which the surety was successful. Out of the $793 which he collected, he paid Mrs. Goodin $100. He paid to the clerk of this court $24.63, and to Mr. Smith Hays, who had been employed to assist him in one of the trials, $43.74, leaving a balance in his hands of $624.63. He refused to pay any of this money to her, and she thereupon discharged him as her attorney, and brought suit against him to recover the money. She testifies that the contract between them was that he was to charge her $100, and that, when the second appeal was taken to this court, he said that he was having more trouble than he thought with the case, and that she ought to pay him $40, $50, or $60 more, and she said, "Let it be $50," and that this was all she had ever agreed to pay him, and that he had agreed at one time to pay her $340 out of the funds in his hands. He denied all this, and said that she agreed to pay him $100 to get the consent judgment set aside, and that she agreed to pay him additional sums for taking the several appeals, and finally it was agreed between them that he was to have $150 and a sum equal to the interest on the notes accrued or to accrue in full of all his services in the matter. This she denied. It appears in the proof that she also paid Judge Pryor a fee of $50 for arguing one of the appeals in this court, and that she paid appellee from time to time different sums to cover his expenses in coming here to attend to the appeals, amounting to perhaps as much as $50. She has also paid costs, except so far as she has recovered them. The jury found for the defendant, and she appeals.

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