Hendrix v. Bull

Boyd, O. J., delivered the opinion of the Court. Fannie S. McAlister filed a bill in equity for the purpose of having a deed of trust from Mary Ida Swayne to Harrie Melvin Bull, trustee, set aside and of having certain other property declared to be that of the estate of Mary Ida Swayne. It also prayed for the appointment of a receiver. ³⁹⁰ for an accounting and for an injunction, as well as for general relief. The theory of the hill briefly stated was that Mary Ida Swayne was incapable of transfering her property and that through fraud and undue influence the defendants acquired it, although if she died intestate the plaintiff was entitled to one-half thereof as her niece.

The bill was filed on June 13, 1908, and Messrs. Standiford, Sparks and Winslow signed it as her solicitors. On August 29, 1908, the plaintiff through Mr. Standiford filed a petition alleging that she never employed Messrs. Winslow and Sparks and asking that their appearance be stricken out, that they be ordered to refrain from representing her and be required to turn over to Mr. Standiford all papers and letters pertaining to the case which were in their possession.

Messrs. Winslow and Sparks filed an answer alleging that Arthur D. Hendrix had employed them under a power of attorney from the plaintiff and setting up an agreement between said Hendrix and the plaintiff. The agreement and power of attorney were filed with their answer. The defendants filed answers to the bill and some testimony was taken on the part of the defendants — it being stated by counsel that it was taken out of the regular order because the witnesses were about to leave the State.

The same day Arthur D. Hendrix filed a petition in which he alleged that he and his wife had a third interest in any money or other property which might be obtained through the prosecution of the cause or any compromise thereof and referred to the exhibits already filed by Messrs. Winslow and Sparks. The petition alleges that Mr. Standiford 'requested and urged him to deposit $100.00 as security for costs, alleging that the plaintiff would repay him in a few days, but she had not done so and intended to defraud him of it, “and that the said Standiford when requested recently as regard to the return of this money to your petitioner stated that the suit had been Settled in New York City some time during the beginning of the week of November 16th, 1908.” It then alleges that said Standiford refused to state to him or the other attorneys of record any of the particulars of the al ³⁹¹ leged settlement and the petitioner has been unable to obtain the particular’s of the said agreement and then charged that Harrie-M. Bull, one of the defendants, had deliberately entered into an agreement with the plaintiff for the purpose of defeating the rights of the petitioner, that the agreement was collusive and made with the intention of defrauding the petitioner out of his interest and one-third of the money or property obtained through the prosecution-or compromise of the ease. The petitioner then prayed that the plaintiff and defendants be enjoined from carrying out that collusive agreement.

An order was passed that the injunction issue unless cause to the contrary be shown on or before the 10th of December, 1908. On December 2, an order was filed with the clerk directing the bill of complaint to be entered “Dismissed.” The defendants and the plaintiff demurred to the petition of Hendrix. The latter then filed a. petition asking leave to amend his former petition, alleging that he had “‘just come into possession of new facts of a highly important character, as regards the said collusive agreement to settle the case, which he could not possibly have gotten before this time and should be stated in his petition,” and asking that his wife be permitted to join in the amended petition. The defendants and plaintiff demurred' to that petition.

Then Messrs. Winslow and Sparks filed a petition asking to be permitted to join Arthur D. Hendrix in his petition to enjoin the plaintiff and defendants from entering into a collusive agreement to settle the case. They filed a power of attorney from Mr. Hendrix by which he appointed Messrs. Standiford, Sparks and Win-slow, his attorneys, to represent him in all matters and things relating to the claim of Mrs. McAlister against the estate of Mary Ida Swayne and agreeing to pay them twenty-five percentum of “all sums recovered by suit, compromise or settlement or otherwise.” Then Mr. Hendrix and wife, and Messrs.

Winslow and Sparks filed a petition in which it is ³⁹² stated that the plaintiff assigned fifty per cent, of her claim against the defendants in the ease to the petitioners and J. Richard Standiford and ask to be made parties plaintiff. Demurrers were filed to these petitions and the Court sustained the demurrers and