Summ v. Superior Court

THOMPSON, J. The petitioner seeks to review and annul a judgment rendered against her by the Superior Court of Yolo County in a case on appeal from the Justice’s Court of Woodland Township in an action for money had and received as attorney’s fees for probating an estate. It is contended both the Justice’s Court and the Superior Court were without jurisdiction to hear or determine that cause for the asserted reason that it is an equitable suit to establish a trust and not an action at law and that the cause was barred by the statute of limitations. The Superior Court adopted findings against the defendant, Anna Summ, and rendered judgment accordingly. The evidence which was adduced at the trial is not before this court.

The complaint which was filed in the Justice’s Court alleges that this petitioner is the surviving widow of Charles Summ, deceased; that she employed H. M. Ball as her attorney to probate the estate of her husband; that upon proceedings duly had she was appointed and qualified as administratrix of her husband’s estate; that her said attorney performed services incident to his employment and completed the probating of the estate with the exception of establishing the inheritance tax, settling the final account and procuring distribution of the property on hand; that H. M. Ball then died and this respondent, Johanna G. Ball, his [305]widow, was appointed and qualified as executrix of his estate; that after the death of H. M. Ball, Anna Summ employed John H. O’Donnell as her attorney to complete the probating of her husband’s estate; that upon application of this petitioner as administratrix of her husband’s estate, the final account was settled and approved and she was allowed on December 31, 1934, $497.48 with which to pay the obligations for attorneys’ fees incurred in probating the estate; that she paid her attorney, John H. O’Donnell, $248.73 in full for the services which he rendered in probating the estate; that upon demand therefor she failed and refused to pay the plaintiff any portion of the fees which her attorney, H. M. Ball, earned prior to his death; that the services which he rendered are reasonably worth the sum of $248.73, which amount was paid from the estate of her husband to the said Anna Summ to compensate her said attorney and. which amount she still retains.

The complaint was couched in three counts. The first cause is a suit in assumpsit for money had and received. It contains the following language:

“That within two years last past the said defendants became, and now are, indebted to the plaintiff in the sum of $248.73, as and for money had and received by the said defendants to and for the use of the plaintiff herein.’’