Steger v. Hume

STREETMAN, Associate Justice. The appellant sought a recovery upon a verbal contract, which is alleged as follows in his petition: “That on or before January 25, 1896, administration of the estate of T. C. Bean, deceased, was pending in the District Court of Grayson County, Texas. That one H. P. Howard and the defendant Hume were the duly appointed and acting administrators of said Bean’s estate; that said estate was of great value, and the residue thereof subject to partition and distribution among said Bean’s heirs considerable. That on said day the application of one Sarah A. Dove and numerous other persons jointly claiming to be the only and lawful heirs of the said T. C. Bean, was pending in said court, wherein they asked that said residue of said estate not needed for the purposes of administration be partitioned among them. That the right of applicants to said partition was contested by' numerous claimants, who denied that applicants were said Bean’s heirs; that the unknown heirs of said Bean had been cited to appear and contest said application, and plaintiff, Ed. D. Steger, and Thos. P. Steger, both practicing attorneys, had been duly appointed and recognized by the courts having jurisdiction to do so, to represent said unknown heirs; that for several years previous to said January 24, 1896, the said attorneys did represent said unknown heirs, resisting all applications for said partition of said residue, and generally representing the interests of said unknown heirs. That on said day and long prior thereto defendant Hume claimed to own and did purchase from said Sarah A. Dove and her coapplicants a large interest in said estate, amounting to about eleven-twelfths thereof. That on said day the District Court on the *402 verdict of a jury finding that said Sarah A. Dove and her coapplicants were the true and only lawful heirs of said T. 0. Bean, deceased, rendered the statutory judgment in such eases made and provided that the said Sarah A. Dove and her coapplicants were entitled to receive said residue of said estate, and ordered said residue of said estate to be divided among them according to their several interests. That on the rendition of said judgment plaintiff and said Thos. P. Steger applied to the court to allow them a reasonable' fee for their services in representing said unlmown heirs. That on the hearing of said application it was proven by uncontradicted evidence that their said services were reasonably worth the sum of $3000, but the court refused to allow them said sum, and only allowed them $2000 for their said services, to which ruling of the court they, for the unlmown heirs, excepted in open court and were preparing to prosecute an appeal to the Court of Civil Appeals having jurisdiction thereof, retying, for error on the sole ground and on no other that the sum allowed them by the court was not reasonable compensation for their said services in and about said matter. That in the judgment of said Steger & Steger at the time the evidence was sufficient to sustain said judgment against said unknown heirs, and they did not intend nor propose to appeal for said unknown heirs on any other ground save that the amount so allowed Steger & Steger by the court for their services as such attorneys was not reasonable compensation for their said services so rendered in said cause for said unlmown heirs. That on or about said day, to wit, January 25, 1896, said Hume, for the purpose of inducing said Stegers to abandon their said appeal, and in consideration of their abandoning their said appeal for said unlmown heirs, proposed and offered to this plaintiff and said Thos. P. Steger, to pay them the sum of $1000; that this plaintiff and said Thos. P. Steger accepted said proposition and offer, and then and there agreed to abandon said appeal for the sole question of testing the reasonableness of said allowance, and not to prosecute same in consideration of said promise to them by said Hume to pay them said sum of $1000, and did abandon said appeal, whereby said Hume became liable and promised to pay this plaintiff and said Thos. - P. Steger said sum of $1000 then and there. That though often demanded, the said Hume refused to pay the same or any part thereof, except as hereinafter set forth.” To this petition a general demurrer was sustained by the court, and no amendment being filed, the suit was dismissed. A majority of the court have concluded that the action of the lower court in dismissing said suit was proper, for the reason that the contract set out in the petition was void as against public policy. The petition shows that in the administration of an estate the plaintiffs were appointed and acted as attorneys for certain unknown heirs. We presume that their appointment was made under Rev. Stats., art. 2161, and if so, their compensation would be regulated by Rev. Stats., art. 2189. Whether we are correct or not in this they were, at any rate, appointed *403 .by the court to represent the interests of such unknown heirs, and were ■allowed by the court the sum of $3000 as their fees. They claim $3000 and gave notice of appeal on behalf of their clients. Appellee Hume represented the principal part of the estate and wanted the litigation ended. He therefore agreed with said attorneys to pay thm $1000, -the additional amount for which they proposed to contend on appeal, in order to induce them to abandon said appeal. The contention of appellant is that because said attorneys only, intended to prosecute said appeal in order to assert their right to said additional $1000, that the contract involved no surrender of any rights of their clients, and was therefore valid. It is, of course, conceded that a contract to pay the attorney of an adverse party to do something or refrain from doing something that will affect the interest of his client is illegal and void. Especially would this be true where the attorney was not acting in his ordinary capacity, but under special appointment of the court to represent interests of clients who were unknown, and with whom, of course, he could not communicate. These principles are not disputed. The only question is their application to the facts of this case. We think it clear that they apply. The right of appeal is a valuable right belonging to the unsuccessful party in a law suit. Whether the appeal would be successful or not, it is deemed valuable to such an extent that it will constitute a good consideration for a contract. 6 Am. and Eng. Enc. of Law, 747, and cases cited under note 5. In this case it would have at least delayed the final judgment for some time and afforded a- longer period within which such unknown heirs might have appeared and established their existence and their interest in the estate. It was, at any rate, a right guaranteed them under the law. It could be exercised by the attorneys appointed by the court (Russell’s Heirs v. Randolph, 1 Texas, 460); and as they alone could exercise the right, their determination as to whether an appeal should be taken was final. This was a right belonging to the unknown, heirs, and whatever may have been the purpose of the attorneys, it is apparent that the principal purpose on the part of the appellee was to extinguish that right and make his judgment final. When the appeal was abandoned it would, of course, leave the judgment for $3000 in force; and the promise of Hume to pay $1000 was in effect to grant all that was claimed by the attorneys. His purpose, therefore, in making the agreement could not have been to compromise their claim, because he agreed to pay them all they were claiming; but it must have been to extinguish the right of appeal in their clients. At any rate, the effect of the contract was to deprive the unknown heirs of their right of appeal and to make the judgment against them final sooner than it would otherwise have become so. There can be no doubt that a contract to pay an officer of court a sum of money to influence his conduct with reference to his official duties is against, public policy. The attorneys in this case were officers of the *404 court, charged with a responsible duty, the duty of conducting this litigation in the interest of the parties they were appointed to represent. As a part of this duty, when judgment had been rendered, it devolved upon them to determine whether they would or would not prosecute an appeal. In'the determination of this question, as every other question which arose in the course of the litigation, it was their duty to act with a view solely to the interest of their clients. Their clients were entitled to their loyal and disinterested opinion, untrammeled by any outside considerations. Any agreement, especially on the part of the adverse party, to pay them a sum of money to determine this question one way or the other, was an unlawful agreement. It may have been that the only object of the attorneys in making the agreement was to settle their own controversy, but in the nature of the case they could not settle this without at the same time settling the other quesion which they had to determine for their clients, that is, whether or not they would prosecute an appeal; and the latter question is evidently the one which Hume was anxious to have determined. It may also be true that the unknown heirs lost nothing by the arrangement, and no injury was done; but it is not a question of actual injury. The tendency of such transactions determines their character, and we are clearly of the opinion that the contract in question was against public policy as tending to' interfere with the proper and unbiased discharge of duty on the part of the officers of the court. ' Affirmed.