United States Fidelity & Guaranty Co. v. Huffmaster

WILLSON, O. J. (after stating the facts as above). It will be noted that tlie power conferred upon the district court by the statute set-out in the statement above to compel an attorney to pay over money collected for his client, summarily and without reference to the amount thereof, is to be exercised only when invoiced “by motion of the party injured or his attorney.” By “the party injured” the lawmakers must have meant the party entitled to demand and receive of the attorney the money collected by him, as such party alone could be injured by the refusal of the attorney to pay over the money. The party entitled to demand and receive money collected by an attorney for his client is the client or his legal representative or assign. In the instant case appellant was not appellee’s client, nor was it the legal representative or assignee of that client. It follows that appellant was not entitled to invoke the statute, and that the court below did not err when he sustained the demurrer and dismissed the proceeding. Appellant’s contention to the contrary is on the theory that, by paying to the boot and shoe company, as it was bound to, the money appellee should have paid, it became subro-gated to the rights and remedies, including the one to proceed by motion, possessed by the boot and shoe company against appellant. There would be merit in the contention if in this state, as in other jurisdictions payment by the guarantor of the debt of his principal operated “as an equitable assignment” to the guarantor by the creditor “of the debt and all its incidents.” 37 Oyc. 412. In this state the right of action of the guarantor who has paid the debt of his principal is not predicated upon the doctrine of subro-gation, but upon “an implied promise raised by law” on the part of the principal to reimburse the guarantor the sum he was bound to pay to satisfy the debt. Faires v. Cock-erell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Lacey v. O’Reilly, 40 Tex. Civ. App. 283, 89 S. W. 640; Whitaker v. Sanders, 52 S. W. 638; Halbert v. Paddleford, 33 S. W. 592; Scott v. Rowland, 14 Tex. Civ. App. 370, 37 S. W. 380. There is no error in the judgment, and it is affirmed. Footnotes [1] @^>Foc other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes