Estate of Merrill

California Supreme Court Dec 23, 1946 No. L. A. 19872Published

Before: Spence

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Holding. The court held that an attorney's appeal from a judgment is not rendered moot by a joint obligor's voluntary satisfaction of the judgment without the attorney's consent, particularly when the judgment includes findings of fraud that affect the attorney's professional standing and pecuniary interests.

Issues

Whether the voluntary satisfaction of a judgment by a joint obligor renders an attorney's appeal moot.
Whether an attorney has the right to appeal a judgment that includes adverse findings of fraud against him despite the judgment being paid by another party.

Disposition. Granted in part and denied in part.

Quotations verified verbatim against the opinion

“In the present case a different situation is presented in that there was no voluntary satisfaction of the judgment by McMahon, the party seeking to proceed with the appeal, but rather the judgment was paid by his joint obligor”

“Manifestly, payment of the money decree by McMahon’s joint obligor did not render moot these additional considerations affecting McMahon’s status in the estate proceeding”

SPENCE, J.

This is a motion to dismiss five appeals on the ground that the principal judgment from which the appeals stem “has been fully paid and satisfied, and all questions relating thereto are now moot. ” A “ Certificate Re Dismissal,” prepared by the county clerk and filed as provided by Rule 42, Rules on Appeal (22 Cal.2d 1, 29), shows the following chronology of events pertinent to the disposition of said motion.

On December 19, 1945, judgment was entered in settlement of the final account of the former special administrator. The court had previously ordered his removal as representative of the estate and appointed one Helen Hillin to act as executrix therein. Objections to the accounting were filed by the executrix and one Evelyn M. Aumick, and except as to a negligible amount of expense, they were sustained as to all items listed, including fees sought on behalf of the former special administrator and his attorney, John J. McMahon. Accordingly, the judgment ordered the former special administrator to pay to the executrix the sum of $2,974.90 then in his hands as property of the estate and to restore the further sum of $4,191.90 wrongfully expended by him, including $3,790.90 paid as attorney fees to John J. McMahon. With respect to this latter item, both the former special administrator and his attorney, John J. McMahon, were made jointly liable.

On December 21, 1945, the following papers were filed by said John J. McMahon: two separate notices of appeal from the judgment, one on behalf of the former special administrator and one on his own behalf; corresponding requests to prepare the transcripts on the respective appeals; and a motion for a new trial. On January 10, 1946, another notice of appeal from the judgment was filed by said John J. McMahon “individually and as an interested party” in the estate. On January 14, 1946, partial satisfaction of the judgment was made by the former special administrator so that there

[522]

was left still outstanding only the sum of $3,790.90, the amount of the attorney fees for which both he and John J. McMahon were jointly liable. On January 24, 1946, the following events occurred: the motion for a new trial was denied; the former special administrator “substituted himself,

in propria persona,

Estate of Merrill

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SPENCE, J.

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