In re Forster

There is no claim presented upon the part of the moving parties herein that the attorney proceeded against has in any way acted in bad faith or from any improper motives. It is conceded that whatever he has done, has been done for the protection of rights which he has honestly believed he should protect.

While concurring with the opinion of Mr. Justice Daniels that these proceedings on behalf of different and distinct claimants cannot be united, no authority has been cited which seems to us to justify the court in assuming, under the facts developed in this case, the summary jurisdiction which is invoked. Reliance is placed upon what is said by the court of appeals in the Matter of Knapp ( 85 N. Y., 284 ), but an examination of that case shows that the attorney had acted as the counsel for the plaintiff in various proceedings, and had been retained to prosecute a claim against the city; that he had acted as counsel for the petitioner in the contest of the will, and that he had received or collected the claim in his professional character as attorney and counsel, and not as agent.

In the case at bar, however, it appears that whatever the appellant has done, was done as an attorney and counsellor of the court of commissioners of Alabama claims, a court of special and. limited jurisdiction, created under the .laws ®f the United States. It had no relation to his office as the attorney and counsellor of the courts of this state. The whole

Under these circumstances, it is difficult to see how the supreme court acquires jurisdiction of this attorney, unless in every case of dereliction of duty upon the part of a person holding the office of attorney and counsel, the court has a right to exercise its summary power. We think that the only way in which this summary power can be invoked for derelictions of duty outside of his relations to his clients as an attorney and counsellor of the several courts of this state must be by an application to deprive him of the right to exercise the duties of that office because of such moral delinquencies as make it improper that he should remain on the roll of attorneys and counsellors of this court.

In the case at bar, however, no such application is made, and there is no pretense that the attorney has been guilty of any conduct which could be the subject of animadversion, the only claim against him being that he is protecting rights which do not exist, and his attempts to protect those rights are, it is admitted, made in good faith.

But there is another reason why this application should have been refused. Even in those cases where the court has jurisdiction to call an attorney summarily to account, it is laid down in the case cited that there must be a clear case presented against the attorney before these summary remedies can be invoked. In the case at bar, there is a claim that parties .who are not represented on this application have liens upon the fund in question, and although it may be a question of law as to whether these liens actually existed, yet the attorney and stakeholder has a right to have that party brought in in order that the rights of all may be determined and he not liable over after a judgment against him in a proceeding of this character. The parties claiming or having the right to claim cannot be brought in in this proceeding and consequently there is not that clear case which in the Matter of Knapp, was said to be a necessary condition precedent to the entertaining of such an application.

The order should be reversed with ten dollars costs and disbursements.

Bartlett, J., concurs.

This proceeding was commenced by petition in favor of six different claimants, to obtain possession of warrants for the payment of money received by the attorney under the authority of the court of commissioners of the Alabama claims. This court was created by chapter 450 of the Laws of Congress, enacted in 1874.

And by the last section of the act it was provided, that the court on motion should allow out of the amount

By chapter 62 of the Law's of Congress the existence of this court ceased with the year 1885. And its jurisdiction, therefore, ended before this proceeding was begun. To support the proceeding in this court it has been averred, and that has not been denied, that the respondent has during all these times been an attorney and counsellor of this court. And that a warrant was issued and received by him in favor of each of the different claimants. But a dispute arose as to the amount which should be charged by Mr. Foster for his services in the prosecution of the claims and receiving the warrants. And this proceeding was taken to settle that dispute, and declare the terms on which the claimants should receive the warrants. The respondent in the proceeding has objected to these different claimants combining together to commence and prosecute it, and as their claim and demands are wholly separate and distinct from each other, this objection appears to be well taken.

It may be under the rule followed in Bowling Green Savings Bank v. Todd ( 52 N. Y., 489 , 493); Matter of Kuhne ( 23 Hun, 282 ; Matter of Mertian ( 29 Hun, 459 ); If Weekly Digest, 163; Matter of Fincke ( 6 Daly, 111 ), and Matter of Knapp ( 85 N. Y., 284 ), that a summary application can be maintained in favor of the respective claimants to adjust the dispute which has arisen between themselves and the attorney, who is an officer of this court, to settle the terms on which the warrants or their proceeds shall be transferred or paid over. But neither of these cases nor any other sustains the right of separate and distinct claimants to combine together to prosecute such a proceeding for their separate and individual benefit.

In this respect the proceeding is irregular and without authority, and as the objection has been taken, necessarily presenting and requiring the decision of this point, it must be held to be well founded, and the order of reference should be -reversed and the application in its present form denied, and the appellant should be allowed ten dollars costs of the appeal and also his disbursements.