White v. Ward

• Decision Date: 18 June 1908
• Citation: 157 Ala. 345,47 So. 166
• Parties: WHITE v. WARD.
• Court: Alabama Supreme Court

47 So. 166

157 Ala. 345

WHITE v. WARD.

Supreme Court of Alabama

June 18, 1908

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Motion by M. L. Ward, administrator d. b. n. of one Allred deceased, against H. K. White. From a judgment for the former, the latter appeals. Reversed.

W. A Gunter, Henry Fitts, A. Latady, Whitson & Harrison, H. K White, and R. B. Kelly, for appellant.

George Huddleston, for appellee.

TYSON C.J.

A motion was filed in the court below, under section 3810 of the Code of 1896, to recover judgment against the appellant for money collected by him as an attorney and not paid over on demand. The appellant's intestate was an infant child of one Allred, who was killed by a railroad, and whose administrator, McCarley, brought suit to recover damages therefor. The appellant was employed as associate counsel in the case, and thereafter conducted the suit to a successful termination, recovering $3,298. McCarley having removed from the state, the appellee was appointed administrator de bonis non and made the demand upon the appellant upon which the motion for judgment was predicated. After demand made, the appellee waited a considerable time before instituting suit, and upon the hearing recovered $15,879.58, which included statutory penalties of 5 per cent. per month, besides 8 per cent. interest per annum for the whole period intervening between the demand and the judgment. The appellant set up and endeavored to establish two defenses: One, that the appellee had no right to recover the money; and, second, that all of the money, except a reasonable fee to the appellant for services rendered and expenses incurred, had been paid out to persons entitled to the same before the demand upon him was made. The court below held that the appellee was the party entitled to receive the money, and denied to the appellant the privilege of showing that it had been disbursed to the parties who would have been legally entitled to the same from the administrator in chief, had he disbursed it prior to the appointment of the administrator de bonis non.

Without following the various rulings of the lower court, we will consider the two points which must control the final judgment. There was no right of action at the common law for the death of the child. Williams' Case, 91 Ala. 638, 9 So. 77. The right to recover damages for its death is therefore purely statutory. The statute awards the damages and the right to sue for them to the parents of the deceased child. Section 26, Code 1896. Under the statute as originally enacted the administrator could not sue, except in the case of the death of the parents. But by the Code the administrator may also sue and recover the damages, but the recovery is wholly for the benefit of the parents. T. C., I. & R. Co. v. Herndon, 100 Ala. 457, 14 So. 287. By the express provisions of the statute a suit by the parents or by the administrator, after passing into judgment, operates as a complete bar to the action by the others, showing conclusively that the administrator is the mere statutory designation and appointment of a quasi trustee, who may sue for the recovery of damages belonging to the parents of the child. By the common law the administrator held, and still holds, the legal title to all the assets and choses in action of the deceased; but the property of the chose in action in this case never did belong to the deceased. It is a right raised exclusively by the statute, and the property vests in the parents of the deceased, who have a personal right to sue for the same as their own property. The statute (Code 1896, § 26) conferring also the right upon the administrator to sue, being a new one, is not found in any administrative right at common law based upon the title of the deceased. As against the parents, therefore, the administrator could have no right or title to the chose in action. He could not be said, as against them, to have the legal title, and certainly he had not the equitable title. The right of property was clearly in the parents, and all necessary right to assert the same was also in them. It is entirely clear, therefore, that the parents would have a right to deal with the chose in action, at their pleasure, before, after, or pending the assertion of the right by the administrator, subject only to the right of the latter to costs duly incurred in the prosecution of the claim prior to any notice of the disposition thereof by the parents. Any release of the claim by the parents, pending a suit by the administrator for recovery, could be well pleaded puis darrein continuance; also any sale by them of the chose in action before or after the recovery would substitute in their place their assignee clothed with all their rights.

Conceding that the administrator de bonis non may institute and prosecute a suit for damages, or succeed to the further prosecution of such a suit after the removal of the administrator in chief, it would be entirely a statutory right, given solely for the due assertion of the right of the parents, and not upon any idea of the legal title to the claim being in the administrator any more than it was in the parents; and therefore it seems to us entirely clear that, after a recovery in the case and the payment of the money to the appellant upon the judgment, there was a right in him, save only as to costs incurred by the administrator in chief, to recognize as the owner of the claim the assignee of the parents, and to deal with such assignee as with the parents, and also to recognize and pay all liens against the funds to other attorneys which might be asserted against the money in his hands. Jackson v. Clopton, 66 Ala. 29. So that, without deciding the question of the right of the appellee to prosecute this suit and to receive the money if it was in the hands of the appellant, or to hold appellant therefor if he had wrongfully disposed of same, we think it is clear that the offer of the appellant, both in pleas and evidence, to show the prompt and legal disbursement to parties entitled of all the funds received by him upon the judgment, should not have been denied. This proceeding being highly penal and quasi criminal, it has been held that it may not be resorted to by an assignee of the claim, or by an administrator de bonis non, though the money constituted assets of the deceased. Cent. Dig. p. 1742; Sloan v. Johnston, 14 Smedes & M. 47.

Having determined that on general principles the appellant should have been allowed, against the claim of the appellee, any defense he might have been entitled to set up against the parents of the child, it remains to inquire whether the statute under which this proceeding was instituted (section 3810 of the Code), when properly construed, does or could constitutionally deprive him of that right of defense. The occasion of the particular statute, and of others of a like kind affording summary remedies, was the high propriety and even necessity of holding public officers, such as sheriffs and the like, and attorneys as officers of the court, to a faithful, honest, and prompt discharge of their duties. The right thus to proceed against them existed at the common law independent of statutes, when the misconduct complained of was in the nature of a contempt of the authority of the court. Schell v. Mayor, etc., of New York, 128 N.Y. 67, 27 N.E. 957; In re Paschal, 10 Wall. (U. S.) 483, 19 L.Ed. 992. But the lawmaking power early saw the propriety of affording a summary remedy in such cases of a wider scope than that at the common law, and therefore enacted a law January 30 and May 13, 1802, which was revised and amended February 10, 1807, as shown in St. Miss. T. pp. 60-61, published in 1816, in the fifth section of which was: "Every attorney receiving money for his client, and refusing to pay the same when demanded, shall be proceeded against in a summary way, on notice before any court of record; and in the same manner as sheriffs are, or may be liable to be proceeded against for money received on execution." The proceeding provided for sheriffs is shown in section 32 of the act of the 7th of February, 1807. Laws Ala. p. 303. Under that act a motion could be made for summary judgment on 10 days' notice for the amount due and interest at the rate of 15 per cent. per annum. This law as to attorneys remained unchanged until 1848, when the damages allowed were 5 per centum per month upon the amount recovered from demand to the recovery. Acts 1848, p. 64. The law was then codified in 1852 (section 2635 of Code of 1852) in its present form, in which was added the clause that the attorney proceeded against might, in the cases mentioned, avoid interest and penalty by payment of the money...