Hentig v. Ass'n

• Decision Date: 07 February 1891
• Citation: 45 Kan. 462,25 P. 878
• Parties: F. G. HENTIG v. THE SOUTHWESTERN MUTUAL BENEVOLENT ASSOCIATION et al
• Court: Kansas Supreme Court

25 P. 878

45 Kan. 462

F. G. HENTIG v. THE SOUTHWESTERN MUTUAL BENEVOLENT ASSOCIATION et al

Supreme Court of Kansas

February 7, 1891

Error from Shawnee District Court.

THE opinion states the nature of the action, and the material facts. Judgment for the defendant Association and others, at the April term, 1888. The plaintiff Hentig comes to this court.

Judgment affirmed.

F. G Hentig, plaintiff in error, for himself.

Johnson Martin & Keeler, for defendants in error.

GREEN C. All the Justices concurring.

OPINION

GREEN, C.:

This action was commenced in the district court of Shawnee county, to enforce the payment of an attorney's lien. As a first cause of action, the claim is made in the "amended and consolidated" petition, that one George P. White held a certificate of membership in the Southwestern Mutual Benevolent Association on the life of his wife, who had died, for the sum of $ 2,500; that the plaintiff, who was a practicing attorney, had made a contract with White whereby it was agreed between them that the plaintiff was to collect said certificate, and for his services was to have a sum equal to 50 per cent. of the amount of said certificate; that he sued the insurance company, and obtained a judgment thereon for $ 1,360, on the 26th day of July, 1886; that on the 17th day of November, 1885, the insurance company had money in its hands due and owing the said George P. White, and the plaintiff gave a notice to the company in writing that he claimed a lien upon the money in its hands due White, to the amount of $ 1,250, for his fees; that he filed a copy of said notice with the clerk of the district court; that the insurance company afterward settled with White without his knowledge, by an assignment of the judgment to J. W. Brown, one of the defendants, who caused a satisfaction to be entered of said judgment.

For a second cause of action, the plaintiff declares upon a bond given by the insurance company, under chapter 131 of the Laws of 1885, and as a breach of the bond says: "That they failed, neglected and refused to proper payment and disbursement make, of the sum of twelve hundred and fifty dollars, which came into their hands, to the legitimate purposes of the association, but caused the same to be paid to George P. White and J. W. Brown." The action is against the association and the bondsmen, and George P. White, but no service was made upon him. A demurrer was interposed to this petition, on the ground that several causes of action were improperly joined, and that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff in error brings the case here, and asks a reversal of this ruling of the court below.

A number of errors are assigned to the rulings of the court prior to the filing of the last amended petition. It is not necessary for us to pass upon them, because the plaintiff, in filing his pleading and complying with the order of the court, waived any right to complain of the order. Having filed his "consolidated and amended petition," no substantial right of his has been thereby prejudicially affected. (Lindh v. Crowley, 26 Kan. 47.)

Can the cause of action for an attorney's lien be united with an action on the bond given by the association, under chapter 131 of the Laws of 1885? This court has held that the bond given is an official bond, and not a corporation bond. The promise is made for the officers and not for the association itself. (Life Association v Lemke, 40 Kan. 661, 20 P. 512.) The giving of this bond is a statutory requirement a constitutes one separate and...