Pauchet v. Bujac

• Decision Date: 19 June 1922
• Docket Number: 5702.
• Citation: 281 F. 962
• Parties: PAUCHET v. BUJAC.
• Court: U.S. Court of Appeals — Eighth Circuit

281 F. 962

PAUCHET v. BUJAC.

No. 5702.

United States Court of Appeals, Eighth Circuit.

June 19, 1922

Charles S. Thomas, of Denver, Colo. (Neill B. Field and Milton J Helmick, both of Albuquerque, N.M., and George K. Thomas, of Denver, Colo., on the brief), for plaintiff in error.

Francis E. Wood, of Albuquerque, N.M. (Owen N. Marron, of Albuquerque, N.M., on the brief), for defendant in error.

Before CARLAND, Circuit Judge, and YOUMANS and JOHNSON, District judges.

JOHNSON District Judge.

It is alleged in the complaint, in substance, that the defendant (plaintiff in error) retained and employed the plaintiff (defendant in error), an attorney at law, and authorized him as her agent and attorney to protect her interests in the estate of her mother, Mathilda Cardoner, deceased, and to take all proper action to prevent one Joseph R. Wilson from securing letters of administration upon and possession of the property of said estate. It is alleged that plaintiff pursuant to said employment, rendered services for the defendant as an attorney and as her agent in protecting her interests in said estate and in opposing the efforts of the said Wilson to obtain letters of administration upon said estate, and to secure possession of the estate without giving bond, and that in the performance of said services he made certain expenditures of money for her use and benefit. It is alleged that as the agent of said defendant he employed Charles R. Bryce and Francis E. Wood, practicing attorneys who, associated with him, rendered services for the said defendant in said matter and made certain advances of money for her benefit; that the said Bryce and Wood each, before the commencement of the action, assigned his claim and account against the defendant to the plaintiff. Judgment is prayed against the defendant for the reasonable value of said services, and for the recovery of the moneys advanced and paid out for her benefit.

The defendant in her answer in substance alleged that the plaintiff by correspondence represented to her that it was to her interest to oppose the appointment of said Wilson as executor of the last will of her mother; that believing and relying upon these representations of the plaintiff, she authorized him to act as her attorney and to take steps to prevent the appointment of Wilson as such executor, but she denied that she authorized the plaintiff to employ associate counsel to assist him in said matter. She alleged that the plaintiff, after having been authorized to act as her attorney, caused her to join in the petition theretofore filed by other persons asking the appointment of plaintiff as administrator with the will annexed of said estate and opposing the appointment of said Wilson as executor of said estate; she alleged that she never authorized the plaintiff to apply for the appointment of himself as administrator with the will annexed or to join with other persons in such application.

She alleged that it was in fact never to her interest to oppose the appointment of Wilson; that there was never any legal ground for opposing his appointment; that the said Wilson during the course of said proceedings, voluntarily executed a bond as executor of said estate, and that if there had previously existed any cause to believe that it was to her interest to resist his appointment, which the defendant denied, the execution of said bond removed such cause; that having become dissatisfied with the course of the plaintiff as her attorney, she employed other counsel and advised plaintiff that she no longer wished to oppose the appointment of Wilson as executor of her mother's estate; that the said plaintiff, designing and intending to secure for himself the benefits and emoluments accruing to the administrator with the will annexed of said estate, refused to discontinue opposition to the appointment of said Wilson as executor and continued to insist upon his own appointment as such executor, and is still so insisting, over the objection and contrary to the wishes of the defendant; that the said Bryce and Wood, plaintiff's assignors, have joined with the plaintiff in his acts of hostility to the interest of the defendant and in disregard of her directions to discontinue opposition to the appointment of said Wilson as executor.

The plaintiff filed a reply in which he admitted that he advised the defendant that the said Wilson was not a proper person to be executor of her mother's will or to be intrusted with the control of the estate, and that his appointment as executor should be opposed. He denied that his representations induced the defendant to employ him to oppose the appointment of Wilson as executor, and alleged that she was moved to oppose Wilson's appointment by information received from her mother prior to her death. He alleged that, being a creditor himself of the estate, he requested other creditors to join with him in opposing the appointment of said Wilson as executor for the purpose of safeguarding the interests of the defendant; that the fact that he had applied for his own appointment as administrator, and had joined with other creditors of the estate in asking for his own appointment, and in opposing the appointment of Wilson, and the fact that he had employed associate counsel, were communicated to and known by defendant, and by her subsequent agents and representatives, all of whom, with full knowledge, ratified and approved plaintiff's said acts, and, for a time, directed plaintiff and his associates to continue to prosecute the said proceedings; that later the defendant directed the plaintiff to discontinue the proceedings in opposition to the appointment of said Wilson as executor; that her request was acceded to and the proceedings as to her were subsequently dismissed by her substituted counsel. It is alleged that thereafter the plaintiff continued to prosecute the proceedings, asking the appointment of the plaintiff as administrator with the will annexed of said estate, and opposing the appointment of said Wilson as executor at the request and direction of the creditors by whom the proceedings had been originally instituted.

The suit was tried by the court without a jury. The court made special findings and gave judgment for the plaintiff. Defendant brings error to this court.

At the conclusion of plaintiff's evidence the defendant moved the court for a dismissal of the action, on the ground that the evidence was insufficient to support a judgment in plaintiff's favor. This motion was overruled, and exception taken, and the defendant has assigned the ruling as error. As the defendant introduced evidence after the court had overruled her motion for a dismissal of the action, the exception was waived, and cannot be considered by this court. International Lumber Co. v. United States, 231 F. 873, 146 C.C.A. 69.

During the progress of the trial the plaintiff was permitted to file an amended reply, over the objection and exception of the defendant.

'The question of the allowance or refusal of amendments to the pleadings is one resting in the discretion of the trial court, and is not reviewable in this court. ' Philip Schneider Brewing Co. v. American Ice Mach. Co., 77 F. 138, 23 C.C.A. 89.

Complaint is made that the court erred in refusing to grant a...