Downer v. Howard

Lyon, J. The petition for leave to appeal from the order of the county court allowing the account of Mrs. Howard’s attorney should have been denied. Under the allegations of. his petition, the respondent, James O. Howard, was-, not a party aggrieved by the order of the circuit court, unless he was the heir of Mrs. Howard. Such heirship was disproved on the hearing of the petition. Hence, he was not a party aggrieved, and could not appeal. R. S., 984, §§ 4035, 4039. It does not appear that the instrument purporting to be an assignment by Newson of his interest in Mrs. Howard’s estate to the respondent was used on the hearing of the petition, or that the administrator ever had opportunity to contest its validity, or that the order allowing the appeal was based upon it. The order merely recites that leave was granted to file the instrument, and it satisfactorily appears from the record that it was not used on the hearing of the petition. The alleged assignment by Newson bears date December 2d, the petition was verified December 9th, and it was presented to the court and heard December 16th. The fair inference is, that when he verified the petition the respondent knew that he was not the heir of Mrs. Howard. He was guilty, therefore, of bad faith and laches by claiming as lieir and failing to disclose the assignment. Because of such bad faith and laches he is not entitled to the favorable consideration of the court in a matter resting somewhat in discretion. The respondent having shown no right to appeal, it is quite immaterial whether the account of the attorney was or was not properly presented and allowed, and we need not consider that question. But it may not be improper to say that the record of the former appeal discloses that the attorney is fairly entitled to recover a large portion if not the whole of the sum allowed him by the county court. By the Cov/rt. — The order of the circuit court is reversed, and the cause remanded with directions to that court to deny the petition of the respondent.