Haradon v. Boardman & Cartwright , 229 Iowa 540 ( 1940 )

The trial court found, and the record shows, that no relationship of attorney and client existed on April 4, 1936, between the defendants and plaintiff guardian. The written proposition filed by defendants on that date was in no manner different than one any other attorney might have made, in his own interests, to perform certain services under an agreement that he would be paid 50 percent of any recovery. On the same day the proposition was filed the court entered an order "that the above proposition of Boardman Cartwright be accepted", and directing and empowering the guardian "to enter into a contract with Boardman Cartwright under the above stated terms and conditions." Of the making of the proposition and of the entering of the order plaintiff was in complete ignorance until a later date when defendants presented to him for his signature a contract accepting the proposition of April 4th. Plaintiff refused to sign, and the record is clear that plaintiff never has employed defendants to represent him in any way in any of the matters to which defendants' proposal pertained. That was the status of the matter that still obtained on September 3, 1936, when defendants filed an application in which, following a recital of the making of the order of April 4th, the prayer was: "Wherefore, your applicants pray an order of this court authorizing them as attorneys for the guardian herein to institute such proceedings as they may deem advisable for the purpose of obtaining such reissuing of the bonds as set out in this application. Your applicants further pray that they may be authorized by the court to do all things, which, in their judgment, they deem necessary to obtain such a reissuing of such bonds and securities as set forth in this application, all upon the terms and conditions as heretofore ordered by this court." On the same day the court entered an order "that said Boardman Cartwright, as attorneys for F.M. Haradon, guardian of M.E. Gillespie, of unsound mind, be authorized and said attorneys are hereby authorized and directed to institute such proceedings as they deem best for the purpose of obtaining a reissuing and recovery" of the bonds that will be mentioned later in this dissent. It was further provided in the order "that said attorneys shall be entitled to a contingent fee of 50% of any recovery made by them." Of the making of this application and of the court's order thereon the guardian had no knowledge and was given no notice. On November 23, 1936, wholly without authority from the guardian, and relying solely on the order of September 3d, defendants filed a petition in equity against Grundy county, in which they named Frank M. Haradon, guardian of M.E. Gillespie, of unsound mind, as plaintiff. Therein judgment was prayed for $13,567.50 upon bonds issued by Grundy county that had been the property of the ward. On the same day the petition was filed the county entered appearance, the case was tried, and the decree signed by the court. In like manner an action was brought by defendants in the name of plaintiff guardian against the city of Marshalltown, in which a decree was entered that the city issue a duplicate of one $500 street improvement bond maturing May 1, 1941, and pay $1,146.28, the amount of two matured bridge bonds. The guardian was obligated in both decrees to file an indemnifying bond, as a condition of recovery. Plaintiff in no manner authorized the commencement of either case, and in no way participated. In fact he was in ignorance of the commencement and pendency of these actions defendants brought, until some time after the decrees had been entered.

There are statutes under which this guardian might have been removed had sufficient cause been shown. The district judge might then have made Boardman Cartwright guardians, upon their filing bond. But despite these inhibitions on his powers the district judge attempted to clothe defendants with the authority to handle and litigate the ward's property rights in the bonds, an authority that was exclusively the guardian's, and in whatever manner the discretion of defendants might dictate, and all this was to be done in the name of the guardian who in truth was refusing to institute the litigation. In actuality defendants became guardians of the ward's interests in the bonds, under the terms of the September 3d order. That the district judge so intended finds later confirmation. On December 5th he accepted the report of Boardman Cartwright filed in the guardianship, detailing the manner in which they had handled the ward's rights in the bonds pursuant to the September 3d order. This report the judge promptly approved as a proper and authorized accounting for the ward's property, and in so doing the judge completely ignored the fact that Haradon, the guardian, and his bondsmen, were those on whom rested the rights and duty to account for the ward's interest in those bonds, and whose liability it would be in event of dereliction of that duty. Thus it seems clear that the court intended and interpreted the order of September 3d as having the substantial effect above ascribed to it. So viewed the making of the order was not within the powers of the district judge, and resultantly it was a nullity. Among the propositions of law given consideration by the writer in reaching this conclusion are the following.

As the majority observes, our statutes confer upon district judges a jurisdiction over the management of an incompetent's property. But what the majority seems to overlook is (1) that that jurisdiction is exercisable only through the medium of statutory guardianship proceedings, and (2) that the only manner of exercising that jurisdiction is by making orders or other judicial entries directing what things are to be done in the management of the ward's property by a statutory guardian. Except as it may be exercised through that medium and in that manner, probate jurisdiction has not been conferred upon district judges. An attempt to exercise a jurisdiction over a ward's property by means of directing anyone other than a statutory guardian to deal with the ward's property, is extrajudicial and void. We have so held in Long v. Burnett, 13 Iowa 28, 81 Am. Dec. 420; Shanks v. Seamonds Campbell, 24 Iowa 131, 92 Am. Dec. 465; Irwin v. Keokuk Sav. Bk. Tr. Co., 218 Iowa 477, 255 N.W. 671. In view of the facts noted, I would affirm the trial court's holding that the order of September 3d was void in its entirety.

I am authorized to state that HAMILTON, J., joins in this dissent.