Thompson v. Nowlin
| Decision Date | 29 March 1902 |
| Parties | THOMPSON et al. v. NOWLIN et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. If an attorney at law by virtue of his employment performs services for an administratrix in the prosecution of a claim due the estate, to be paid for out of the proceeds thereof and another administrator is substituted in lieu of the first, and afterwards receives such proceeds, such attorney is entitled to payment for such services therefrom, unless he has been otherwise paid therefor.
2. A general creditor may maintain a suit in chancery against a nonresident administrator appointed in this state who has failed to return the inventory and make settlement of his accounts as required by law, and who has squandered the estate and become insolvent; and the sureties on his bond are proper parties to such suit. If in such suit the administrator confesses assets which he has converted to his own use, the plaintiff is entitled to a decree for his claim against such administrator individually and his sureties, and a reference to a commissioner is unnecessary.
Appeal from circuit court, Summers county; J. M. McWhorter, Judge.
Bill by J. S. Thompson and A. F. Matthews against A. W. Nowlin and others. Decree for plaintiffs, and defendants appeal. Affirmed.
Miller & Read, for appellants.
W. R Thompson and J. Speed Thompson, for appellees.
DENT P.
A W.Nowlin, administrator of Wm. J. Gordon, deceased, the Fidelity & Deposit Company of Maryland, Charles Boze, and James H. Miller appeal from a decree of the circuit court of Summers county in favor of J. S. Thompson and A. F. Matthews. This case appears to be one of dry technicalities, indicative of the want of meritorious defense.
The first objection urged is that the bill was filed in the name of J. S. Thompson for the use of A. F. Matthews. The court sustained the demurrer because thereof, and permitted the filing of an amended bill in the name of J. S. Thompson and A. F. Matthews as plaintiffs. There is no error in this, as Thompson, as assignor, is a necessary party to the suit, and Matthews, by virtue of the assignment, had the right to bring the suit in his name, or to join him in the suit as a plaintiff or a defendant; and, to make the original bill complete, it was only necessary to make Matthews a party thereto. Defendants insist that the original bill should have been dismissed, as J. S. Thompson had parted with his entire interest in the matter. This is not true, for he was still responsible for the claim, if Matthews failed to make it from the defendants, and he is a proper party to the suit. Kellam v. Sayre, 30 W.Va. 198, 3 S.E. 589; Grove v. Judy, 24 W.Va. 294.
The second objection is because the court refused to quash the order of publication, as it used the words "now resident," instead of "non resident"; being clearly a typographical error, self-corrective, and easily understood by a person of less than ordinary sense, and no legal learning, and therefore could mislead no one of ordinary intelligence.
The third objection is that the cause was prematurely heard at the May term. This objection should have been urged at that time, not now. The defendants Nowlin and the Fidelity & Deposit Company appeared at that time and moved to quash the order of publication, which motion being overruled, two of the defendants demurred to the bill, and no further action was taken in the case until the 7th day of September, 1899. Whatever was done at the May term was at the instance of the defendants, and of this they have no right to complain.
The fourth and fifth objections are passed for the present.
The sixth objection is because the court failed to give defendant Miller a rule to answer after overruling his demurrer. This was afterwards corrected by giving him such rule, and he answered.
The seventh is passed.
Eighth. Because Ida Welch, the distributee, was not a party. This was unnecessary, because she was not interested in this litigation.
The ninth, tenth, eleventh, and twelfth are passed.
Thirteenth. Because the suit was abated as to Eliza A. Moorman, deceased. She was not a necessary party, nor was her personal representative, as her interest was entirely destroyed when she was removed as administratrix, and another substituted for her.
The fourth, fifth, seventh, ninth, tenth, eleventh, twelfth fourteenth, fifteenth, sixteenth, seventeenth, and eighteenth may all be considered together, as the answer to some few of them satisfies all the rest. The following is a statement of the undisputed facts: W. J. Gordon was accidentally killed while in the employ of the Chesapeake & Ohio Railway Company. Eliza A. Moorman, with whom he lived, and by whom he was raised (he having neither father, nor mother, nor other near kin, except his sister known as Ida Welch, who at that time was an infant not under guardianship), believing that Gordon's death was caused by negligence, applied to be, and was, appointed administratrix of his estate. She thereupon employed J. S. Thompson, an attorney at law, to prosecute the claim against the Chesapeake & Ohio Railway Company, agreeing with him, in writing, that if he should get a settlement out of said company without suit, he was to have 15 per cent. of the amount realized, but if he had to bring suit he was to have one-third of the amount collected. Mr. Thompson, without being able to effect a settlement, instituted suit, and was vigorously prosecuting the same, with hopes of a compromise of $2,500, when A. W. Nowlin, an attorney from Lynchburg, Va., who had in some unrevealed way obtained knowledge of the claim, and secured from Ida Welch, then an infant, a writing authorizing him, as her attorney, to prosecute or compromise such claim, appeared, and secured the removal of Mrs. Moorman as the administratrix, and had himself appointed in her stead, with the Fidelity & Deposit Company of Maryland, James H. Miller, and Charles Boze as his sureties. It is charged in the bill, and not denied in the answer, that Nowlin was acting in concert with, and under the advice of, an agent of the Chesapeake & Ohio Railway Company, with whom he effected a compromise. His conduct in this matter seems to fully sustain this charge, and to justify an inference that he was not looking after the interest of Ida Welch,...
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