McFarland v. Gilbert, Circuit Judge

• Decision Date: 20 January 1939
• Citation: 276 Ky. 423
• Parties: McFarland et al. v. Gilbert, Circuit Judge.
• Court: United States State Supreme Court — District of Kentucky

276 Ky. 423

McFarland et al. v. Gilbert, Circuit Judge.

Court of Appeals of Kentucky.

January 20, 1939.

1. Courts. — The Court of Appeals' original jurisdiction will not be exercised in favor of granting relief so as to supply absence of

a right of appeal to such court and thereby nullify the statute limiting such right (Constitution, sec. 110).

2. Mandamus. — Where claimant's counsel in compensation proceeding were refused judgment for amount of fee but compensation payments were ordered to be divided between claimant and counsel and counsel did not appeal from order, counsel were not entitled to mandamus indirectly seeking a review of the order by correcting any error therein (Ky. Stats., sec. 4942; Constitution, sec. 110).

3. Mandamus. — Where claimant's counsel in compensation proceeding were allowed fee with direction that employer deduct amount thereof from compensation due claimant, and compensation checks were sent to counsel who turned them over to claimant without making any deduction as agreed, counsel was not entitled to mandamus to compel entry of judgment for counsel for amount of fee since judicial discretion was involved in entering judgment (Ky. Stats., sec. 4942; Constitution, sec. 110).

4. Mandamus. — The exercise of judicial discretion may not be controlled by writ of mandamus.

In Court of Appeals.

STEPHENS & STEELY for petitioners.

B.M. LEE for respondent.

OPINION BY CHIEF JUSTICE THOMAS.

Dismissing Petition.

This is an original action filed in this court by the members constituting the law firm of Stephens & Steely — in conjunction with their client, Charles McFarland, as petitioners — against the Hon. James M. Gilbert, Judge of the Harlan circuit court, as respondent, seeking to compel him to enter a specific judgment. The substance of the petition is that petitioners composing the law firm of Stephens & Steely represented the other petitioner, Charles McFarland, in a proceeding before the Compensation Board, whereby a former award made to the client was increased, and the latter received an additional award amounting in the aggregate to something near $1,200. The members of the firm then moved the board for the allowance of a fee for representing their client pursuant to the provisions of section 4942 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes, which is a part of our Workmen's Compensation Act. The Board sustained their motion and allowed them a fee of $167.85 to which was attached this direction: "and the defendant company or its insurance carrier is directed to deduct the said sum from any compensation that may be found to be due plaintiff, commuting sufficient of the final payments under the award to a lump sum for that purpose."

The petitioning attorneys wrote a letter to the attorney of the employer in which they said: "You will, of course, send us the checks so that we may deduct our fees as we go along," and which was continuously thereafter done. Later, and after notice was given to that effect, the attorneys filed in the Harlan circuit court their motion for the entry of a judgment confirming and conforming to the order allowed by the compensation board, i.e., a judgment in favor of the attorneys for the amount of their allowed fee with the directions that...