Consolidated Underwriters v. Trevino

SMITH, Chief Justice. This is a workmen’s compensation case, in which Daniel Trevino, the employee, recovered judgment in the court'' below against appellant, Consolidated Underwriters, the insurance carrier, for a lump sum of $2,214.65, with interest, of which amount one-third was awarded to Hayden C. Cov-ington, as attorney’s fee for representing said Trevino in the case. The appeal of the insurance carrier was duly perfected and is now pending in this Court. Appellant and appellee, Trevino, have filed their joint motion in this Court, alleging that they had “agreed to settle and compromise said suit arid all things involved therein in so far only as they effect the recovery of said Daniel Trevino but not in anywise effecting the recovery of Hayden C. Covington, subject to'the approval of the trial court upon this cause being remanded to it.” And they further allege and pray: “That appellant and appellee have agreed to settle said suit in so far as the interest of said Daniel Trevino is concerned, for the sum of Eight Hundred and no/100 ($800.00) Dollars representing his two-thirds (⅜) interest in said judgment and in said suit, leaving the other one-third (⅜) awarded to said Hayden C. Covington just as it was without respect to such settlement. “Wherefore appellant and appellee pray that this Honorable Court enter an order herein reversing and remanding this cause to said District Court in order that an agreement judgment may be entered therein settling the matters and things involved in this suit in accordance with the agreement above mentioned.” It is asserted by Covington and conceded by appellant and appellee that the agreement for settlement was entered into by appellant and appellee without the consent, and over the protest, of Covington, who has filed herein his reply to said joint motion to reverse and remand, contesting the same for various reasons not necessary to mention [862] here, but none of which are regarded as affecting the relief prayed for in said motion. We have concluded that this Court has no power to grant the specific relief prayed for by appellant and appellee; that is to say, to reverse the judgment in favor of the employee, and remand'the cause as between the insurance carrier and the employee, and at the same time retain jurisdiction over the appeal insofar only as it affects the award of attorney’s fees to counsel for appellee, who is not a party to the suit or the appeal. The jurisdiction of this Court Jias not been invoked to determine any controversy between appellant and counsel for appellee, whose rights, although indissolubly linked to those of appellee in the trial court, cannot be affected by private agreement between appellant and appellee in this Court. Texas Employers’ Ins. Ass’n v. Howell, Tex.Civ.App., 107 S.W.2d 391. Appellant and appellee having joined in an agreement that the judgment against the former in favor of appellee be reversed and the cause as between them remanded in order to submit to the trial court for approval, and there reduce to judgment, their compromise agreement to settle, they are entitled to that relief, and as between them the judgment will be reversed and the cause remanded for that purpose. But the appeal will be dismissed insofar as it affects the judgment in favor of Covington as attorney for appellee. Costs of the appeal will be taxed against appellant. Reversed and remanded in part, and appeal dismissed in part.