Sharpstein, J., dissenting. —It is conceded that the guardian ad litem was authorized to employ an attorney to prosecute [92]the action for the infant plaintiffs, and that the plaintiff here was duly employed by said guardian ad litem to prosecute said action, and that he did prosecute it to final judgment; and that he received the sum recovered and discharged said judgment as he was authorized to do. (Code Civ. Proc. § 283.)
And it will probably be conceded that if the parties, for whom he appeared in the action in which he recovered such judgment, had been adults, the court in which said action was tried could not in a summary manner have determined the “measure and mode of his compensation, because that “is left to the agreement, express or implied, of the parties.” (Code Civ. Proc. § 1021.) There are cases in which a court will summarily compel an attorney to pay over money which he has received in satisfaction of a judgment recovered by his client. But those are cases in which it is charged and made to appear that the attorney by not paying the money over is acting in bad faith. “ It is this misconduct on which the court seizes as a ground of jurisdiction to compel him to pay the money in conformity with his professional duty. The application against him in such cases is not equivalent to an action of debt or assumpsit, but is a quasi-criminal proceeding in which the question is not merely whether the attorney has received the money, but whether he has acted improperly in not paying it over. If no dishonesty appears, the party will be left to his action.” (In re Paschal, 10 Wall. 483.) .
The only question which we have to determine in this proceeding is, whether the Superior Court acted without or in excess of its jurisdiction ? And unless this case is distinguishable from Paschal’s, this question is not altogether new. For as we interpret the opinion in that case, the court distinctly held that, in the absence of an allegation or proof of bad faith on tire part of an attorney retaining money collected by him for a client, the court would not have jurisdiction to proceed in a summary manner against the. attorney to compel him to pay it over to the client. That it was prima facie the duty of the attorney, “ after deducting his own costs and disbursements,” to pay over the residue to his client. But that for his fees and disbursements he had a lien upon the fund in his hands, and was under no obligation to pay over anything beyond the amount [93]remaining in his hands after deducting the amount of his fees and disbursements. And that where it appeared the attorney and client honestly differed as to the amount of such fees and disbursements, they would be left to the usual remedy at law. A motion for an order to have an attorney pay over money which he has collected for a client cannot be properly granted unless the neglect or refusal to pay it over be imputable to a dishonest motive. The motion must be based upon the misconduct of the attorney. That is necessary in order to give the court jurisdiction to proceed in a summary manner. Such we understand to be the doctrine of the court In re Paschal, and it commends itself to our judgment.
But it is contended that that case differs materially from this. In that case the parties for whom the attorney had collected the money which it was sought to have him compelled to pay over Avere adults. In this case they are infants. But it is not contended that the attorney in this case was not authorized to receive the money recoArered and to acknoAvledge satisfaction of the judgment. Nor is it contended that he did not have a lien upon the fund in his hands for the amount of his fees and disbursements, or that he had no right to retain in his hands the amount of said fees and disbursements. But it is claimed that because the residue after deducting the amount of said fees and disbursements would belong to infants, the court had jurisdiction to proceed and determine in a summary manner the measure of compensation of their attorney. But the legislature when enacting that the manner and mode of compensation of attorneys should be left to the agreement of the parties, express or implied, did not provide that in cases where infants Avere parties the measure and mode of compensation of their attorneys should be left to the court in Avhich the action was tried.
And there does not appear to be any very good reason for making any such distinction. It cannot be assumed that a judge, by proceeding to determine in a summary manner the amount of compensation to Avhich an attorney is entitled for services rendered in behalf of infant parties, would be more favorable to the infants than a jury, or that there xvould be less likelihood of justice being done between the parties after both had had an opportunity of a fair trial before a court and jury [94]than there would be if the matter was summarily heard 'and determined by a judge upon motion.
And the general guardian who appears on behalf of the infants in this proceeding could as well have commenced an action as to have made a motion for the adjustment of the matter in controversy between his wards and the plaintiff herein.
The analogy between this case and one in which a general guardian of an infant sues or defends for his ward, is too slight to warrant a court in holding that the rules which prevail in regard to the employment and compensation of counsel by a general guardian can be applied to a case in which counsel appears on behalf of infants in an action in which they sue or defend by a guardian ad litem. Speaking of the appointment of a guardian ad litem, Abbott says: “ Such an appointment does not seem to involve any relation of guardianship in any full or significant sense of the term, so little is any custody of person or estate involved.” (Abbott’s Law Diet.)
There is no law which authorizes such a guardian to allow or present to a court for allowance any claim for compensation of counsel for services rendered for the ward of such guardian.
And in Smith v. Smith, 69 Ill. 308, it was distinctly held, that where an infant is a party to an action, and appears by a guardian ad litem and an attorney, the fees of such attorney could not, in the absence of a statute authorizing it, be taxed by the court, in which the action was tried, upon the petition of the guardian ad litem, but that such fees could only be recovered in the usual mode against the general guardian, and collected out of the infant’s estate. In that case the action in which the attorney had appeared for the infant involved the title to real estate, and the attorney did not, as in this case, have the fruits of the litigation in his own hands. So that the question of the right of the attorney to hold on to money recovered in an action for an infant client until his, the attorney’s, fees were paid, was not involved in that case. But by parity of reasoning it would seem that if in the one case the attorney must sue the general guardian for his fee, in the other the general guardian must sue the attorney for such amount as the attorney retained over and above his fair compensation; that is, in a case like this, in which it is not claimed that the attorney withholds any[95]thing beyond the sum. to which he honestly believes himself entitled.
If the summary jurisdiction of the court depends, as was held In re Paschal (supra) upon the question of the attorney’s good faith in withholding what he claims to be due him, it is quite clear that the court below exceeded its jurisdiction in making the order now before us, and therefore it should be annulled.