
    (Sixth Circuit — Lucas Co. O., Circuit Court
    January Term, 1899.)
    Before King, Haynes and Parker, JJ.
    ROSE CONNELL v. ORVILLE S. BRUMBACK et als.
    (For opinion in this case in the Court of Common Pleas by Pratt, J., see 4 Nisi Prius Rep. 404.)
    ¡f* Contract of administratrix with law firm, for share of judgment or sum of settlement, in suit for damages for death of R. R. employe —Settlement by R. R. Co. with administratrix without knowledge of attorneys — Suit against R. R. Co. and administratrix to recover share under contract—
    A^law firm brought suit for an administratrix against a R. R. Co., to recover damages for negligently causing the death o one of its employes, the intestate of the administratrix, after having made a contract with the administratrix that for their fees they should have a certain share of the judgment if any was recovered. They notified the R. R. Co. of their interest in and alleged lien on the result of the suit or any settlement thereof, but the R. R.Co., without their knowledge or consent, entered into negotiations for a settlement with the administratrix, and finally settled with her, payng her a certain amount of money, and agreeing to pay the fee of her lawyers, no amount thereof being agreed upon. The law firm thereupon brought suit for a certain portion of the amount paid in settlement of the claim, making the R. R. Co., the administratrix as such and individually, and the guardian of the minor children of the deceased as such and individually, parties defendant. On demurrer to the petition on the ground of misjoinder of parties, and generally for insufficiency of facts stated in the petition, held:
    
      No cause of action against administratrix as such—
    
    (1) . That there i3 no cause of action that can be maintained against either of these representative parties, either the administratrix or the guardian, in their representative capacities.
    
      R. R. Co. and administratrix individually properly joined—
    (2) . That there is but one cause of action stated against the Railway Company and Rose Connell individually, and therefore there is no misjoinder of causes of action, and the two parties can properly be united in the case as defendants.
    
      Good cause of action against administratrix individually—
    (3) . The petition sets up a good cause of action against Rose Connell individually, arising out of her breach of contract with the plaintiffs’ law firm.
    
      Unessential averments in petition may be disregarded by court—
    (4) . Where the petition contains certain allegations unessential to the cause of action, the court may disregard these and render judgment in the case on-the strength of the essential allegations.
    
      Contract made with administratrix as such — Action for breach aqainst her individually—
    (5) . Although the contract was made by the defendant Rose Connell in her capacity as administratrix, yet the action can be maintained against her individually for breach of the contract. The contract having for-its subject-matter a claim i¿ which she was personally interested, and for its object the enforcement of that claim, absolute control of the proceedings or of the fund by her was immaterial.
    
      Order of dismissal of some defendants final order as to them — _
    (6) . An order of the court dismissing a petition as to some of the defendants, is a final order as to them, upon which error will lie, and a cross-petition in error against such dismissed defendants, filed more than six months after the date of sucfi order of dismissal, by the plaintiff below in error proceedings instituted by the other defendants, must be dismissed.
    
      Railroad not liable under facts of case—
    <7). Under the facts of this case there was no cause of action against the Railroad Co., as it had a right to settle the case with these parties, and under the evidence it did not promise to pay any particular sum to counsel in the damage suit, nor did it agree to pay according to the terms of the contract between the law firm and the administratrix. Perhaps a lien might he obtained upon the funds that would arise immediately- upon a settlement being made, so that the railway company might be charged as trustee, or might be required, if proper notice had been served, or proper steps taken, to withhold some share of the fund for the protection of the right and interests of the attorneys. But the notice served upon the railway company in this case was^not to that effect.
    Error to the Court of Common Pleas of Lucas county.
   Parker, J.

This is a proceeding brought to reverse a judgment obtained by the defendants in error against the plaintiff in error, in the court of common pleas of this county. The action in that court was by Hurd, Brumback, A Thatcher, a law firm, against the Wheeling & Lake Erie Railway company, Rose Connell individually, Rose Connell as'administratrix of the estate of John Connell, deceased, and Abby Riley as guardian of John Connell and Frank Connell, minors.

The petition sets forth, in substance, that the plaintiffs were employed to prosecute an action against The Wheeling & Lake Eire Railway Company,on behalf of the beneficiaries, or those entitled to recover, on account of the decease of John Connell, late of Huron county, Ohio; that they were employed by Rose Connell, his widow; that subsequently they were employed on the same terms of employment by Rose Connel, as administratrix of the estate of John Connell, deceased.

The case that they were employed to prosecute arose, as they say in the petition, on the following facts: That on or about the 12th day of February, 1894, and for a number of years prior thereto, said John Connell was in the employ of the defendant railway company as an engineer, engaged in running an engine on said line of railroad; that on account of the carelessness and negligence of the said defendant railway company, said John Connell was killed near the city of Belleyue, in said state, on said last named date, and the petition sets forth particularly' the circumstances under which this occurred; that Rose Connell was the wife of said John Connell; that Anna May Connell, aged 19 years, John Connell, aged 16 years, and Frank Connell aged 9 years, were children of the deceased. It is averred that ty the terms of this employment and in consideration of the services to be rendered by plaintiffs below, said Rose Connell agreed to pay the plaintiffs out of the money to be recovered in said action, either¡by suit or settlement,one half of the sum so recovered after first deducting the sum of $1500, and that they institued an action in the court of common pleas of Lucas county, for the purpose of recovering $10,000 damages, which they averred had been sustained; that they prosecuted this action with diligence, and the petition sets forth certain services rendered by them in that behalf. The petition contains the following averments:

“That thereafter all of the defendants herein conspired together for the purpose of defrauding these plaintiffs of the compensation to which they were entitled by reason of their services in said action, and without the knowledge or consent of plaintiffs, did, on or about the 21st day of May, 1895, enter into a contract and agreement of settlement, by the terms of which said railway company agreed to pay to said Rose Connell, as such administratrix, the sum of thirty-five hundred dollars in settlement of said case. That as a part of the consideration of said settlement said railway company further agreed in writing to pay the attorney fees which these plaintiffs were entitled to in said above-named case. That in furtherance of said fraud and conspiracy and for the purpose of making it appear that the said administratrix received but the sum of fifteen hundred dollars in the said settlement, and for the further purpose -of deceiving these plaintiffs as to the true amount of said ■settlement, the said defendants conspired together and caused the records of the probate court of Huron county to be so prepared as to show that the said Rose Connell, as ■such administratrix, settled said cause for the sum of fifteen ■hundred dollars. That at the same time of preparing said records, on or about the 21st day of May, 1898, the said railway company, through its officers and attorneys, and through the intervention of the said Rose Connell, and Abby Riley, caused the defendant Abby Riley to be appointed guardian of said John Connell and Frank Connell, children of said decedent. That instead of paying.the full sum of money to be paid in said settlement, except the compensation due these plaintiffs, said defendants conspired together and caused the sum of two thousand dollars, which ■was a part of the consideration of said settlement,to be paid to the said Abby Riley as such guardian.
That a short time before the said 21st day of May, 1895, and before said settlement was consummated between the defendants, these plaintiffs served written notice upon the defendant railway company and upon its attorneys of record in said above-named case, Messrs. Swayne, Swayne & Hayes, that they had an interest in, and a lien upon, the proceeds of any settlement made or judgment rendered in said action so brought by the said Rose Connell, administratrix; and requested the said railway company to consult with plaintiffs before any adjustment of said cause was made, and told said company that these plaintiffs would favor a settlement of said cause upon a reasonable basis. That said company, through its said attorneys, in response to said notice told these plaintiffs that the said company would consult with them, and would make a proposition of settlement of said case to plaintiffs; as attorneys for the said administratrix; but instead of doing so, did wrongfully, fraudulently and with intent to defraud plaintiffs of the just compensation to which they were entitled, cause said settlement to be brought about, without the knowledge or consent of plaintiffs, and without giving them any notice thereof."

The petition then avers that they claim as their compensation $1000; that they have presented their claim for this fee to the railroad company, to the guardian, to the administratrix and to the parties individually, and it has not been paid, and they ask for judgment against all the parties for $1000 and interest.

The answer filed to this petition on behalf of such of the defendants as answered, is substantially a general denial.

Now the case in the court below took this course: On motion of the defendants, certain allegations in the original petition were stricken out,to which plaintiff excepted. We find that these averments which were stricken out were either matters of evidence or immaterial matters, and that the action'of the court with respect to that was proper.

Upon the 27th day of October, 1897, a demurrer was filed by the defendants, and was heard and sustained as to Rose Connell as administratrix, and as to Abby Riley as guardian, and the petition as to them was dismissed. The plaintiffs excepted and took leave to file an amended petition, making Abby Riley individually a party defendant". The journal entry of that date with respect to this matter reads in part as follows:

“In consideration whereof, the court being duly advised in the premises,' in sustaining said demurrer in part and overruling same in part, find as follows, to-wit:
“First. That there is one cause of action in said petition contained and set forth, the same being in tort and not in contract, against the defendants The Wheeling & Lake Erie Railway company and Rose Connell individually.
“Second. That there is no cause of action in said petition contained and set forth against said defendants Rose Connell as administratrix of the estate of John Connell, deceased, and Abby Riley guardian of John Connell and Frank Connell, minors.
“The court therefore sustains said demurrer of said defendants as to Rose Connell, administratrix of the estate of John Connell, deceased, and sustains said demurrer as to the defendant Abby Riley, guardian of John Connell and Frank Connell, minors, and overrules the said demurrer as against the defendants The Wheeling & Lake Eire Railway company and Rose Connell individually, to which ruling of the court the plaintiffs by their counsel excepted and leave is given the plaintiffs to file an amended petition in ten days, and upon application of the plaintiffs, Abby Riley is made a party defendant.”

An amended petition was filed, and the averments in the amended petition are substantially the same as those in the original petition, excepting that the parts stricken out from the original petition were omitted from the amended petition, and Abby Riley was made a party defendant. The amended petition contains a prayer for judgment against all of the defendants precisely as if Rose Connell as administratrix, and Abby Riley as guardian, had not been dismissed from the case, (as we find they had been, in effect,) without changing the averment as to, them.

Answers were filed on behalf of the railway company and on behalf of Rose Connell and Abby Riley individually and upon these pleadings the parties went to trial to a jury.

After the evidence was all in, by agreement of parties, the jury, was discharged from the consideration of the case and the whole matter was submitted to the trial judge,

On the 31st of March, 1896, there was a finding and judgment for the plaintiffs and against Rose Connell for $1000 and accrued interest, and in favor of Abby Riley and the railway company as against the plaintiffs.

Nothing is said in the record as to Rose Connell, as administratrix, or as to Abby Riley as guardian, after the 27th of October, 1897.

On June 16th, 1898, a petition in error was filed by Rose Connell against the plaintiffs below to reverse the judgment against her. On July 23, 1898, a cross-petition in error was filed by plaintiffs below against Rose Connell, as administratrix, Abby Riley, as guardian, Abby Riley personally and the railway company, to reverse the judgment and orders entered in favor of these defendants below against plaintiffs below.

The first inquiry arises upon the petition in error filed by Rose Connell. We find that the case stated in the amended petition against her is fairly made out by the evidence. It is quite apparent that this settlement included a payment of $3500 to the beneficiaries, all of whom were represented by Rose Connell, as administratrix. Whether the method pursued of distributing the amount received was regular and lawful and exonerates her as administratrix, so that she may not be called upon to surrender some share of the $1500, which the records of the probate court show she received on behalf of all the beneficiaries, (the $1500 is shown by her report and the court’s finding to have been the whole amount received on behalf of all the beneficiaries), we need not now inquire.

While the court below in passing upon the demurrer expressed the opinion that the action was founded on an alleged tort, and that the plaintiffs might recover judgment against so many of the parties as may have participated therein, we are of the opinion that the amended petition sets forth a good cause of action against Rose Connell, individually, arising out of the acts done by her, including her breach of contract, and that under the proofs the judgment against her is fully warranted, And in arriving at this conclusion we do not find it necessary to invoke either Revised Statutes, §5207, as to the submission of cause without pleadings, or Revised Statutes, §5114, as to amendments, to sustain the action of the court below. It was only necessary for the court to disregard certain allegations of the petition unessential to the cause of action against her. And we do not deem it necessary to determine whether the action against her comes strictly within the category of tort or that of contract. It is clear however, that it had its foundation in contract and a breach thereof, and, so far as she alone was concerned, all other matters were immaterial. It is not apparent to us that the plaintiff in error was prevented in any way from setting up and taking full advantage of any defenses she may have had to the case stated against her, whether the case was viewed as one sounding in tort or upon contract.

It is urged that the action could not be maintained against the plaintiff in error on her contract, because she therein agreed to do that which was legally impossible for her to perform; that is, to institute and prosecute and perchance settle an action over which she as an individual had and could have no control, and had no right of control, since an administrator of the estate of the deceased was the only proper or lawful representative and person in authority in the premises.

We discover no such obstacle to the enforcement of this contract. Rose Connell was the widow of the deceased, and therefore, one of the beneficiaries.

This contract having for its subject matter a claim in which she was personally interested, and for its object the enforcement of that claim, absolute control of the proceedings, or of the fund, was immaterial. Even an administrator could not obtain absolute control of the litigation or the fund, since such trustee is subject to the control of the probate judge in- the enforcement of such claims, and in the distribution of the fund. How far an administrator may bind himself as such so as to affect the fund, or how far the fund may be bound by the contract of the administrator or the beneficiaries wilh an attorney, or by the service of the attorney in securing the fund, we need not now consider. It is sufficient that she was a beneficiary, (if indeed any interest in or right of control over the proceedings or the fund is required, which is not apparent), and as such cestui que trust she would have some right to be heard and to, in some measure, by proper proceedings, regulate the action of the administrator, acting as her trustee, if he should attempt to proceed in disregard of her rights and interests in the premises.

Besides this, she had the first right to the office of administratrix, and she availed herself of this right, and thereafter accepted the services of plaintiffs below tendered and performed under the contract, so that after all the questions as to her right and power in the premises had been removed, she ratified the contract, and it then became legal and obligatory, if it had not been so befoie.

Upon the receipt of the $11500 her obligation to pay $1000 to the plaintiffs below arose. If the settlement was upon the terms she states in her testimony, the amount to be paid was really $5,500, and the plaintiffs below were entitled to $2000; that is, the share of the beneficiaries of the amount received over $1500 was to be one-half, and the share of the attorney was one-half. By agreement with the railroad company, which had notice of this contract, she was to have as her share,$2000, and, therefore, their share would be an amount equal to that. But since they hav9 claimed but $1000, and have recovered a judgment for but $1000, this may be dismissed without farther remark.

As io the cross-petition in error of the defendant in error the time limited for the filing of a petition in error to reverse the judgment of the court below dismissing the petition of the plaintiff as to the administratrix and as to the guardian had expired before the cross-petition in error was filed. As I have said, that judgment of the court was entered upon the 27th day of August, 1897, and the cross-petition in error was filed on the 23d day of July, 1898. Therefore the court has no jurisdiction in the premises. Young v. Shellabarger, 53 Ohio Statutes 291.

Such jurisdiction cannot be conferred upon this court by the voluntary appearance, or agreement of the parties. King v. Penn, 43 Ohio St. 57.

We regard the order of the court dismissing the petition as to the defendants Rose Connell as administratrix and Abby Riley as guardian, as a final order upon which error could be prosecuted. If, however, the order does not have that effect, then there is no judgment of the court below as to these defendants. No order respecting them was made subsequently to October 27th, 189-7, and if that is not a final order, then the case in the court below is still pending as to these defendants.

Secondly: as to Abby Riley individually. The proof in the case indicates that she was the passive agent of the other parties in accepting the guardianship and the funds of the wards. It does not show that she designed to assist in the perpetrating of any fraud upon the plaintiffs. We think that the evidence was not sufficient to warrant a judgment against her personally, and that the judgment of the court below as to her was not opposed to the evidence.

Third: as to the railroad company. Though the proof may justify the conclusion that it conspired with RoseConnell and others to deceive and defraud the plaintiffs below, does it appear that any fraud was accomplished, or any legal wrong done?

This is not an action to charge or subject the fund. If it were, the railroad company might well answer that there is now no fund in its hands subject to the orders of the court. It is not an action upon the contract of the railway company to pay the plaintiffs’ fees. If it may be viewed as such an action — 'there are certain allegations in the petition which would indicate that some such idea may have been entertained by the plaintiffs below — 'but if it were viewed in that way, then there is no sufficient evidence in the record to indicate that the railroad company entered into any obligation to discharge the promise or obligations of Rose Connell to the plaintiffs; that is to say, to pay the amount that she had promised to pay.

If this were an action upon a contract or promise of the railroad company growing out of this settlement, we cannot ses that the statute of frauds would prevent a recovery, since it would be part of the consideration of the settlement, part of that agreed to be paid, in effect, to Rose Connell as administratrix. But on this theory the finding of the court in not so clearly against the evidence as to warrant a reversal, The evidence tends to show that the railway company did not promise to pay any particular sum, or any more than it might please to pay. It does not show that the railway company agreed to pay according to the terms of the contract between Rose Connell and the plaintiffs below.

The action against the railway company is really upon the theory that it defeated some right, lien or legal advantage of the plaintiffs below, and that it may be required to respond on account of the damage thereby done.

Assuming that Rose Connell, personally, or as administratrix, might and did by her contract give a right to or a lien upon a share of the fund,or that plaintiffs’ services gave rise thereto, still the contract made by Rose Connell with the plaintiffs made her the paymaster of plaintiffs.

The contract reads, as follows:

Agreement.
“Rose Connell, party of the first part, hereby employs Hurd, Brumback and Thatcher, parties of the second part, who undertake to prosecute an action against the Wheeling •& Lake Erie Railway Company to recover for damages sustained by her, and the heirs of John Connell, deceased, on account of the death of the said John Connell occasioned by the negligence of the railway company, on cr about the I2th day of February, 189L
“The said party of the first part hereby agrees to pay to the parties of the second part, out of any money recovered in said action, by suit or settlement, one-half of said moneys first deducting the sum of $1,500.
Then follows a stipulation as to the amount to be paid in •case no suit is instituted, and the agreement is signed by Rose Connell and by Hurd, Brumback & Thatcher.
The railway company settled with Rose Connell, as administratrix, as it had a right to do. That is not questioned. It is not pretended that by any contract or arrangement with Rose Connell the law firm could interfere with, or obstruct, or in any way affect the right of the railway company to settle its cause of action with the representative of the beneficiaries, and, under the statutes, upon the making of this settlement, she had a right to receive the funds growing out of the settlement. (Revised Statutes, sec. 6185.) There is no allegation or evidence in the case, nothing to make it appear that this firm of attorneys had ■any prior right to receive the fund or to have the fund pass through their bands. The contract, as I have said, does not provide for that. The contract provides that they are to receive their pay from Rose Connell. Notwithstanding this, perhaps a lien might be obtained upon the funds that would arise immediately upon a settlement being made, so that the railway company might be charged as trustee, or might be required, if proper notice had been served, or proper steps taken, to withhold some share of the fund for the protection of the rights and interests of the attorneys. But the notice served upon the railway company was as follows:
“Defendant will take notice that under and by virtue of the terms of an agreement between the plaintiff and the undersigned, her attorneys, the undersigned have an interest in the proceeds of any settlement made or judgment obtained in the above entitled action.
“Please consult us before entering into any compromise. May 17, 1895.
(Signed) “Hurd, Brumback & Thatcher.”

There is nothing in this notice to require the railway company to hold any part of the funds or pay them into the hands of the attorneys in order that they may protect any right or lien that they may have by virtue of these transactions. The conversations between the plaintiffs below, the members of this law firm, and the representatives of the railway company, go no farther than this notice. There is-nothing in those conversations requiring the railway company to withhold the funds for their protection. We hold that the railway company did only what it had a right to do in the premises in paying over the amount of money agreed upon in settlement to Bose Connell, or to those to whom, she directed that it should be paid.

There is no allegation or proof of the insolvency of Bose Connell. Some remark was made by Bose Connell when under examination, after the case had be9n heard and decided and an effort was being made to obtain a re-hearing and a new trial, which might indicate that she was then insolvent; but that was not one of the issues in the case. The alleged efforts to deceive the plaintiffs as to the amount in settlement came to naught, and do not appear to have in any way affected the plaintiffs below to their detriment or disadvantage. There is nothing in the case made to show-that the railway company did anything but that which it had a legal right to do, or to show that Bose ConnelJ is not now as good a paymaster aa she was when the contract was made, or, if she is not, there is nothing to show that the railway company is in anyway responsible for her being less, able to pay. If the railway company had been notified that the plaintiff desired it to retain and pay their' share to them , direct, a very different question would be presented to us. for consideration. This view of the matter upon the evidence makes it unnecessary for us to consider or discuss the ■ authorities cited with reference to the right of attorneys to. obtain or acquire liens upon funds under circumstances like ■ these.

Swayne, Hayes & Tyler, for Plaintiff in Error.

Hurd, Brumback & Thatcher, for Defendants in Error.,

The cross-petition in error as to -the administratix and guardian will be dismissed, and the judgment of the court, below as to the other parties will be affirmed.  