Miles v. Kaigler

• Decision Date: 31 December 1836
• Citation: 18 Tenn. 10
• Parties: MILES v. KAIGLER et al.
• Court: Tennessee Supreme Court

18 Tenn. 10

MILES

v.KAIGLER et al.

Supreme Court of Tennessee.

December Term, 1836.

At the January term, 1829, of the supreme court for the state of Tennessee, sitting at Nashville, Isabella Kaigler and Wm. W. Kaigler, infants under the age of twenty-one years, who sued by their father, David Kaigler, as prochein ami, recovered judgment against Thomas Miles (the complainant) for the sum of $687.18, the payment of which was enjoined by this bill in chancery, filed May 6, 1829.

On March 24, 1829, David Kaigler executed a power of attorney to John B. Miles, by which he authorized him to receive and receipt for the amount of said judgment from the said Thomas Miles, or from any sheriff who might have collected the same, and to agree, compromise, or compound said claim as he might think proper. In this power of attorney David Kaigler calls himself father and guardian of the said infants, Isabella and Wm. W. Kaigler; the proof shows that he was their father, but not their guardian, except so far as being their father constituted him such. About the last of May, or first of June, 1829, David Kaigler wrote a letter to Robert M. Burton, the lawyer who had prosecuted the suit in favor of the minors to a judgment, directing him, if he had not paid the money to John B. Miles, the attorney in fact, not to do so, and not to acknowledge his agency in the transaction. Sometime in July or August, 1829, Burton saw complainant and showed him the letter, and directed him, if he had not paid the money to John B. Miles, not to do so, as the power of attorney was thereby revoked. On September 15th complainant compounded, or, as he alleges, paid, the debt for which the judgment had been rendered at law, and which had been enjoined by this bill, to John B. Miles, the attorney in fact, notwithstanding the information communicated to him by Mr. Burton. David Kaigler refused to ratify what had been thus done, but died before a final hearing of the case, and by a supplemental bill his administrator was made a party thereto, who by his answer shows funds distributed to Isabella Kaigler and Wm. W. Kaigler, children of David Kaigler, more than sufficient to cover the amount of the judgment compromised as above stated.

Upon the above statement of facts the court below rendered a decree in favor of complainants, from which the defendant appealed to this court.

R. J. Meigs, for complainant in error. The questions are: 1st. Can a prochein ami compromise a judgment recovered at law for an infant? 2d. Can he authorize another to do it in his name? 3d. Is notice by a creditor to his debtor not to pay to an attorney in fact of the creditor's a revocation of the attorney's power?

1. A guardian ad litem may acknowledge satisfaction of a judgment on record. T. T. 23 Car. 2, B. R., cited 1 Chit. Bl. 362, 472; Moore, 852, cited 3 Bac. Abr. 617.

A prochein ami and guardian are often all one. 2 Inst. 259; Commentary on St. West, 1, ch. 48, §§ 7, 8; Id. 390; Id. 2, ch. 15. The court will take care that a prochein ami be a person of substance. 1 Atk. 570. And will make him give security for costs. 1 T. R. 491.

The reason why a prochein ami and guardian are said by Lord Coke to be often all one is manifestly the following: When an infant is sued, the power of appointing a guardian ad litem belongs to the court as a mere incident of its jurisdiction of the cause. 1 Thomas' Co. Lit. 285 (top page), note. As the power is an incident, there must be a lis mota as an occasion of its exercise. Hence, it is only for defendants that the court can appoint such a guardian. But the court have no incidental power to appoint a guardian for an infant ad litem movendum. This is the duty of a general guardian. But if he himself is to be sued, or if, when an infant has a just cause of action against a stranger, he neglects to right him, here is a manifest defect of justice. To remedy this the two statutes of Westminster above mentioned were passed, which, in effect, authorize the court to appoint a guardian ad litem movendum. He is, therefore, many times in our books, says Coke, taken for guardian, and guardian for him, because he is in fact a guardian, though called by another name; therefore, what a guardian ad litem can do, the guardian ad litem movendum, or prochein ami, may do. If a guardian ad litem may acknowledge satisfaction on record of a judgment recovered in behalf of the infant, so may a prochein ami. Now, the power of acknowledging satisfaction is no other than the power of giving an acquittance or receipt of the highest solemnity, and includes the power of releasing, compounding, or compromising the judgment, i. e., of receiving the money adjudged, or an equivalent.

2. It has been decided that, though an infant cannot submit his suit to arbitration, his guardian or other person may submit for him, and the person submitting shall be bound by the award. Watson Arb. 21, 42. If he may do this, he may appoint an arbitrator, of course. Now, John B. Miles was empowered “to agree, compound, and compromise” this claim of the infants', and so had the power of, and was in effect, an arbitrator. The principle that a guardian may submit for an infant, and bind himself that he shall perform the award, was established, in contradiction to former determinations, by Roberts v. Newbold, Comb. 318. Cited Toml. L. Dic., Award, II.

3. The third question is settled in the negative, in 5 T. R. 214, 215.

4. But, if there is any doubt that the infants are directly bound by the acts of John B. Miles, acting as the attorney in fact or chosen arbitrator of their prochein ami, they are at least bound by his acts as the agent of their ancestor, to whose estate they have succeeded as heirs and distributees.

Whatever the plaintiff paid to John B. Miles as agent of David Kaigler he would have a right to recover from David Kaigler on failure of the consideration for which it was paid. Now, if the infants are entitled to their execution notwithstanding the satisfaction of the judgment through the agency of John B. Miles, then the consideration on which the plaintiff paid him is gone, and he has a right to be restored to his money. But that money is in the hands of the infants, as representatives of their father. Therefore, if they insist on a second payment, they ought to be compelled to suffer the plaintiff to be substituted in their room to their father's estate pro tanto. But this would be attaining justice by a circuity to which the court will not resort.

Again, if the money never came into the hands of David Kaigler, but yet remains in the possession of John B. Miles, then the defendants must look to him, because their ancestor must have looked to him, and they now represent their ancestor's obligations and rights.

F. B. Fogg and Geo. S. Yerger, for defendants. 1. If the judgment mentioned in the pleadings had been paid by the defendant in the manner and under the circumstances stated in the bill, it was a payment made to a person not authorized by law to receive it, and cannot operate as a satisfaction of the judgment.

Admitting that David Kaigler authorized John B. Miles to receive the money from the defendant, what right had David Kaigler to give such authority? He was not appointed the guardian of his children; and his authority, if he had any, must therefore result from the fact that he was the father of the complainants, and was their prochein ami in the suit in which the judgment was recovered. Neither of these relations authorized him to satisfy the judgment.

When a judgment is recovered by a minor it constitutes a part of his personal estate. The money due upon the judgment, when collected, must be paid into court or paid to the legally constituted guardian of the minor. And by the act of 1762, ch. 5, §§ 5, 7, 9, 10, no person can legally receive or take into possession the personal estate of an infant but a testamentary guardian, or a general guardian appointed by the court.

Payment to the father of an infant as guardian by nature, or for nurture, is authorized by law. The natural guardian, or guardian for nurture, has only the care and custody of the person of an infant, not of his property. Hargrave's Co. Lit., note 66, 67; 2 Wend. 153; 1 Roper Leg. 580, 590; 1 John. Ch. 3; 6 Id. 553, 591.

So payment to a guardian ad litem would not be a satisfaction of the judgment. 3 Inst. 261, 390; 3 Bac. Abr. 413, 410, note; 2 Croke, 640; 3 Bl. Com. 427.

The power of a prochein ami is limited to the management of the cause. The statutes of Edward authorizing minors to sue by prochein ami was not intended to confer on them the powers of a general guardian. His authority ceases when the judgment is rendered. The extent of his power may be seen from the form of his admission to prosecute. 2 Archb. Pr. 143; Tidd's Ap. 3 Bac. Abr. 413, 617, 621.

If the rule were not as we contend, great injury would frequently be the consequence to the estates of minors. By our law and practice any person may sue as the next friend of an infant. The prochein ami may frequently be wholly irresponsible. No security is ever required of him, except for costs, and thus, in many cases, if the judgment is satisfied by payment of the money to him, it would be wholly lost to the infant.

The court of appeals of Kentucky has decided he has no authority to receive the money due upon a judgment recovered by an infant. 2 Pir. Dig. 301.

2. If David Kaigler had the right to receive the money, we contend it never was paid to him. The facts and proof in the cause show that the whole transaction was in fact a fraud upon the rights of these infant complainants. The pretended payment was made to John B. Miles, who at one time was authorized by power of attorney from David Kaigler to receive it; but this authority was revoked, and the payment made by the defendant with full knowledge of this fact.

But it is said the power was under seal, and could only be revoked by an instrument under seal, and that the...