
    Martha Sivley v. Mary De Priest Sivley.
    [50 South. 552.]
    MOTION TO STRIKE CONEESSION OE ERRORS EROM THE EILE.
    1. Supreme Court. Jurisdiction. Dispositions of case.
    
    When a case is appealed to the supreme court it can he disposed of only hy consent of that court.
    2. Same. Same. Same.
    
    The supreme court will not consent to the disposition of a case hy the nominal parties, where it is reasonably probable that the equitable interest of third persons, though not actual parties to the record, will he prejudiced.
    S. Same. Same. Same.
    
    The supreme court will permit attorneys who have, on a contingent fee, prosecuted a suit in the trial court to judgment in an insolvent plaintiff’s favor, to appear for themselves and resist a reversal of the judgment, although their client has confessed error and asked for a reversal.
    Prom the circuit court of Newton county.
    Hon. James R. Byrd, Judge.
    Mary De Priest Sivley, appellee, was plaintiff in tbe court below; Martha Sivley, appellant) was defendant there and from a judgment for $30,000 in plaintiff’s favor she prosecuted a supersedeas appeal to tbe supreme court.
    Tbe defendant is tbe mother of plaintiff’s husband and the suit was for damages alleged to have been suffered by plaintiff because of the malicious alienation by defendant of the affections of her son from plaintiff and for inducing him to 'abandon plaintiff, his wife.
    After the case reached the supreme court the appellee, plaintiff, confessed errors and asked for a reversal of the judgment. Thereupon the attorneys, who had represented her in the trial court, May, Flowers & Whitfield, made a motion in their own behalf to strike the confession of errors from the file and for leave to resist the appeal, showing in the- motion, and accompanying affidavits and written evidence, that they were interested in the judgment to the extent of one-half of it in this way: — They had represented the plaintiff in the trial court under a contract by which their fee, a wholly contingent one, was to be a sum equal to fifty per centum of any recovery that might be had in the case; that plaintiff had no property, save the judgment appealed from, and unless collection was made thereon, in whole or in part, they would be unable to collect any thing on their fee; that since the perfection of the appeal appellant and appellee, claiming a reconciliation between themselves and the plaintiff and- her husband, had' entered into a conspiracy, the object and purpose of which, and of the confession of errors by appellee, were to defeat and defraud them of their fee; that they, the attorneys, had instituted a suit in equity, still pending, to prevent an entry of satisfaction of the judgment and to enjoin appellant from conveying her property in fraud of their rights.
    The appellee, in response to the motion, denied the fee contract, asserted that her suit was prosecuted under a misapprehension of the facts and should not have been instituted; that ,the judgment was wrongfully obtained; that her husband and herself were perfectly reconciled, were now living together in happiness, and that she had the right to confess errors.
    [For decision on the merits, see Sivley v. Sivley, infra, p. 187.]
    
      
      11. V. Fletcher and J. 0. 8. Sanders, for tbe motion.
    
      Tim, F. Cooper j J. B. Chrisman; B. N. Miller and C. L._ Sivley, contra.
    
    [Tbe briefs of counsel on tbe motion bad been withdrawn or lost from tbe record when it reached tbe reporter; hence no synopses of them appear in this report.]
    Argued orally by B. V. Fletcher, for motion and by B. N. Miller, contra.
    
   WilliaMSON, Special Judge,

delivered tbe opinion of the court.

We shall not undertake a statement of tbe facts contained in this motion, but leave it to be stated by tbe reporter. When an appeal is taken to tbe supreme court of tbe state by any party, tbe jurisdiction to determine tbe cause is thereby transferred to that court, and any subsequent disposition made of tbe case can only be made with the consent of tbe court. It is true, ordinarily, that tbe parties may withdraw their appeal, or make any other disposition of tbe case which they may choose to make, provided it be not inconsistent with tbe duties of tbe court, or in any way invasive of tbe province of tbe court; but even then it can be done only when all the parties legally or equitably interested in tbe subject-matter of tbe litigation agree, and tbe court consents. When tbe appeal is taken, and tbe appellate court obtains jurisdiction of any cause, tbe court will allow no disposition to be made of tbe cause by tbe nominal parties, where it is made to appear to tbe court that it is reasonably probable that tbe interest of third parties, having an equitable interest in tbe suit, tbougb not actually parties to tbe record, will be destroyed or prejudiced.

In examining tbe motion under consideration, it is manifest to us tbat it is at least probable that May, Mowers & Whitfield bave an equitable interest in this litigation, and tbat, if tbey bave an equitable interest, tbat interest would be prejudiced by any disposition made of tbe case by tbe actual parties of record, and tbe court will refuse to permit tbe cause to be disposed of in any way by tbe act of any of tbe parties, and retains tbis cause for bearing on its merits.

It is further tbe judgment of tbe court tbat May, Mowers & Whitfield, claiming to be equitably interested in tbis judgment, shall bave tbe right to appear as attorneys for themselves and argue, orally or by brief, tbe merits of tbis case.

So ordered. 
      
       Whitfield, C. X, because of bis relationship to one of the parties in interest recused himself in this case and C. M. Williamson, Esq., a member of the supreme court bar, was appointed and presided as a special judge in his place.
     