State Ex Rel. Stella M. Showen v. O'Brien

• Decision Date: 29 November 1921
• Docket Number: No. 4407.,4407.
• Citation: 89 W.Va. 634
• Parties: State ex rel. Stella M. Showen, Relator v. O'Brien, Judge, et als.
• Court: West Virginia Supreme Court

89 W.Va. 634

State ex rel. Stella M. Showen, Relator

v. O'Brien, Judge, et als.

No. 4407.

Supreme Court of Appeals of West Virginia.

Submitted November 15, 1921.

Decided November 29, 1921.

Submitted November 15, 1921. Decided November 29, 1921.

1. Bastaeds Conviction on Confession at One Term Cannot be Annulled at a Subsequent Term.

A circuit court is without authority to annul at one term a judgment of conviction upon confession of the accused in a bastardy proceeding, and for the periodical payments of money to the county court for the maintenance and support of the child for whose paternity he is responsible, entered at another and different term. (p. 640).

2. Attorney and Client Attorney Has Lien on Judgment in Bastardy.

An attorney, who prosecutes or assists in the prosecution of a bartardy proceeding to final judgment in favor of the mother of the child, upon an agreement with her or her next friend for an interest in the amount of the recovery, has a lien on the judgment for fees for services rendered by him in her behalf, (p. 639).

3. Same-Fraudulent Agreement Between Parties to Judgment in Bastardy Cannot Deprive Attorney of Fees.

Where a lien for the fees of an attorney who prosecutes or assists in the prosecution of a bastardy proceeding attaches to final judgment of conviction against the putative father of the child, and for the payment of money for its support for a specific term of years, the mother in person or by her next friend and the accused can not by a fraudulent agreement after judgment deprive the attorney of fees for the services so rendered by him. (p. 637).

4. Same Attorney Claiming Fraudulent Release of Judgment Defeating Lien Has Burden of Proof.

The burden of proof to show fraudulent procurement of a release of a judgment in a bastardy proceeding rests upon the attorney. (p. 637).

5. Compromise and Settlement Rights of All Parties Must be Regarded and Respected.

The rule that the courts favor compromise settlements by parties to prevent vexatious and expensive litigation only applies where the legal and equitable rights and interests of all parties concerned in a judgment are regarded and respected in good faith, (p. 637).

6. Bastards Mother Held to Have Beneficial Interest in Judgment for Support of Child.

Although the mother of the illegitimate child, or her next friend if she is a minor, or the county court if the judgment in a bastardy proceeding is payable to such court for the support of the child, may in a sense hold the fund so derived in trust for the benefit of the child, yet she has a beneficial interest in the fund, as she remains liable for its nurture and maintenance within the limit of her ability to bear that burden, aided by the compulsory contribution of the putative father, (p. 639).

(Lively, Judge, absent.)

Original proceeding in prohibition by the State, on the relation of Stella M. Showen, against W. H. O'Brien, Judge, etc., and others.

Writ awarded.

Thos. P. Ryan, for relator. Lynch, Judge:

In a complaint duly verified and filed with a justice of Roane County, Stella M. Showen, a minor and unmarried, charged Earl Bowers with being the father of a child born unto her, and on May 12, 1919, he appeared in person and by counsel in the circuit court of the county and confessed the truth of the accusation, II. C. Furgeson being present and representing the county court and Thomas P. Ryan, an attorney at law, the mother of the child. Acting upon the complaint and confession, the circuit court entered judgment against Bowers for $45.00, which amount he then paid, and required him to pay monthly thereafter $7.50, and to enter into a bond, which he did, in the penalty of $1,000.00, with sufficient surety and conditioned upon the prompt compliance with the order.

Sometime prior to May 18, 1921, he having in the meantime paid the monthly installments, Bowers notified the child's mother and the county court of his intention to move the circuit court on that day to vacate the judgment and ex- onerate him from the burden of the payments so required. The grounds alleged for the motion were his inability to pay the amounts because of the impairment of his health, and his improper conviction upon the complaint made against him. notwithstanding the confession. This motion he made May 18, 1921. and counsel for the mother appeared that day, pursuant to the notice served on her, and resisted the motion, and the further hearing was continued from time to time, until upon a petition by her next friend, J. A. Showen, a writ issued by this court prohibited further proceeding upon the notice and motion. Nevertheless, the mother and putative father, either in person or by representative, arrived at some arrangement in the nature of a compromise of the judgment, and she moved to dismiss the prohibition proceeding. Ryan thereupon filed his petition alleging fraud in the procurement of the agreement, the purpose of which, he says, was to delay and defraud him in the collection of fees for his services as her legal advisor in the bastardy proceeding, she, according to the petition, having agreed to allow him one-half of the judgment as compensation. The prayer of his petition is that it may be filed in the prohibition proceeding, "that said action may be allowed to proceed to final determination in the name of the said parties for his benefit and that his said rights and his said (attorney's) lien may be protected and enforced" and for other further and general relief.

To the petition of the mother's next friend the persons prohibited have not appeared, and the petitioner appeared only to move its dismissal, and on that motion no action has so far been taken, and the Ryan petition remains unanswered.

In this jurisdiction there is and can be no question as to the equitable right of an attorney to claim and have his fees secured to him out of a judgment or recovery he has been instrumental in securing for his client in a particular suit, he, to that extent, being regarded as an. equitable assignee of the judgment or decree. Renick v. Ludington, 16 W. Va.

378; Bent v. Lipscomb, 45 W. Va. 183; Hazeltine v. Keenan, 54 W. Va. 600; Fisher v. Mylius, 62 W. Va. 19. If the client does not obstruct the prosecution of the action or suit, and a judgment or decree in his favor results, the attorney, generally, may readily protect the lien for his services. But if by fraud, collusion or deception, the client attempts to defeat the lien before judgment or decree, the attorney may and should as a matter of right for his own protection continue for his benefit the prosecution of the action in the name of the client whom he represents. Burkhart v. Scott, 69 W. Va. 694. There may be and are instances warranting an independent judicial proceeding for the protection and enforcement of such a lien, as in Bent v. Lipscomb, cited.

There are authorities that criticise as inaccurate the use of the term "lien" in a case of this kind. They prefer rather to treat what is thus described as the claim of an attorney to the equitable interference of the court, having jurisdiction of the parties and judgment, to hold and control it as a security for his protection, because of his official relation to the court. This is the definition given by Baron Parke in Barker v. St. Quentin, 12 M. &, W. 441, 152 Reprints 1270. That term, however, is the one ordinarily used in most decisions.

In this case, as already remarked, Ryan in his petition alleges a collusive and fraudulent settlement of the judgment he was one of the active agents in procuring, the design and effect of the settlement being, he says, to defeat the collection of his fees, payment of which is secured by a lien on the judgment sought to-be annulled, after the adjournment of the term at which it was rendered. Courts...