Scott v. Donahue

NOURSE, J.

Plaintiff brought two separate actions in the superior court on behalf of himself and other members of San Francisco Lodge No. 198 of the Brotherhood of Railroad Trainmen. One action was in replevin to recover bonds claimed to be the property of the members of the local lodge. The other action was in

assumpsit

to recover money which was also claimed to be the property of the members of this lodge. In both actions a complaint in intervention was filed on behalf of a minority of the members of the lodge claiming the property to be held in trust for the benefit of the minority alone. The actions were tried together and resulted in judgments in favor of the intervener, the trial court finding that all the property was a trust fund held for the benefit of the minority members represented by the intervener. On appeal to this court these judgments were reversed upon the ground that the property was found to be a trust fund for all the members of the local who were in good standing at the time of its dissolution.

(Scott

v. Donahue,

ante,

p. 126 [269 Pac. 455, 458].) After the entry of the judgments in the superior court and pending the appeal therefrom, Scott applied to the superior court for an order substituting J. H. Morris as his attorney in place of George D. Collins, Jr. These motions were resisted and in support of the opposition affidavits were filed from which it appears that Collins was employed by Scott at the instance of two hundred and fifty-nine other members of Local No. 198 to prosecute the actions to final determination upon a specified contingent fee to be paid him upon recovering the property

[258]

and to be paid solely out of the property recovered. It also appears that, prior to the attempted substitution of attorneys, Scott assigned all his interest in the property to an association known and designated as Local No. 52 and that the other members of Local 198 in whose behalf the actions were commenced, as well as Scott’s assignee, oppose the substitution of attorneys and desire Collins to continue to represent them. Upon the oral argument it was stated by counsel for respondents on the main appeals that the purpose of the substitution was to obtain an attorney who would consent to a dismissal of those appeals.