Parra v. Cleaver

BARNARD, P. J. This is an appeal from an order ¡setting aside a satisfaction of judgment and permitting the plaintiff to take out an execution.

[387]The action was begun in 1927 through a guardian ad litem, the infant being then about two years of age. A judgment was entered against the defendant, from which he appealed. The guardian ad litem died in 1929, while the appeal was pending, and no other guardian of any kind was appointed. After the judgment had become final, and without knowledge of the death of the guardian ad litem, the defendant paid the full amount of the judgment to the attorneys who had acted for the plaintiff. These attorneys executed and acknowledged a satisfaction of judgment, which was filed on February 10, 1931. The amount so paid was embezzled by one of the attorneys for the plaintiff and never reached the estate of the minor. Subsequently, a general guardian of the person and estate of the minor was appointed and a motion was made which resulted in the order here appealed from.

The appellant, while conceding that the authority of an attorney is terminated by the death of his client, argues that in a case of this kind the attorney, although appointed by the guardian ad litem, acts for the infant and not for the guardian who appoints him. It is then argued that, under such circumstances, the death of the guardian ad litem does not affect the authority of the attorney which, under section 283 of the Code of Civil Procedure, includes the authority to receive money and to satisfy a judgment.

Cases from other states may be found on both sides of the question whether such an attorney is to be considered as acting for the infant or for the guardian. In one case in this state it is stated that one so appointed “is the attorney of the guardian and not of the infant” (Emeric v. Alvarado, 64 Cal. 529 [2 Pac. 418]). Whether that is to be taken as the established rule in this state need not be here decided as the matter here in controversy seems to be settled by statute. Section 1810b of the Code of Civil Procedure, as existing in February, 1931, and now included in the Probate Code, in addition to providing that all contracts for attorneys’ fees for the benefit of minors are void and that all such fees must be fixed by the courts in which judgments are rendered, provides: “ . . . and if said judgment is for money, and there is no general guardian for said minor, one shall be appointed by the court, and the entire amount of the judgment shall be paid to and cared for by such general guardian, under the control of the court; provided, where a minor has brought an action by a guardian ad litem and has recovered a money judgment not