John J. Donnelly v. Honorable Barrington D. Parker , 486 F.2d 402 ( 1973 )

FAHY, Senior Circuit Judge,

concurring with a comment:

The comment has reference to the language of Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953) repeated in the present opinion of our court. The language conveys the view that the burden rests upon the petitioner for the writ of mandamus to show “that its right to issuance of the writ is ‘clear and indisputable.’ ” The “clear and indisputable” language in turn is taken from United States v. Duell, 172 U.S. 576,- 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899). I should suppose “indisputable” is to be read as somewhat synonymous with “clear,” for in Bankers Life itself there was a dissent by Mr. Justice Frankfurter, with whom Mr. Justice Jackson and Mr. Justice Minton joined. While the dissent was primarily to the effect that grant of the writ of certiorari in Bankers Life was improvident and therefore that the writ should be dismissed, Justice Frankfurter also stated:

The Court’s opinion does not help decision when a party is dismissed from a litigation for reasons not as obviously compelling as those in this case. It necessarily leaves open the question whether such a ruling by a district judge may be reviewed by mandamus, without awaiting the completion of the entire litigation, in circumstances where postponement of review would involve a protracted trial, entailing heavy costs and great inconvenience. Compare Ex parte Skinner & Eddy Corp., 265 U.S. 86, 95-96, 44 S.Ct. 446, 448, 68 L.Ed. 912, with Ex parte Chicago, R.I. & P.R. Co., 255 U.S. 273, 41 S.Ct. 288, 65 L.Ed.-631. This Court ought not to be called upon to hold that where a district judge refused to entertain a “frivolous” claim, mandamus will not issue to compel him to entertain it.

346 U.S. at 388, 74 S.Ct. at 150.

In Ex parte Skinner & Eddy Corp., 265 U.S. 86, 95-96, 44 S.Ct. 446, 68 L. Ed. 912, thus referred to, it is said mandamus is an extraordinary remedial process awarded not as a matter of right but in the exercise of a sound judicial discretion. Weight is thus added to the view indicated in Justice Frankfurter’s dissent that the writ may issue in disputable circumstances. An “indisputable” standard argues for an unduly rigid rule. Such rigidity illustrates the unwisdom, as it seems to me, of phrasing principles with respect to process or to judicial review which not only cannot take into consideration unknown and variable situations which may arise, but which at times apply a brake to the fair administration of justice.

ROBB, Circuit Judge:

I agree that the writ must be denied. The petitioner contends that he is entitled to an order for “the physical and mental examination of the plaintiff, Ca-tharine W. Kunz, for the purpose of determining whether she had the capacity to bring the action and whether she has the capacity to maintain the action. . ” I think the district judge, in the exercise of his discretion, properly refused to order the requested examination.

The record discloses without contradiction that on October 1, 1971 counsel for Mrs. Kunz wrote to the petitioner demanding the return of certain of her assets that were in his possession. He did not respond to this demand. In December 1971 and January 1972 she presented her complaint to the Grievance Committee and to the Federal Bureau of Investigation. On April 26, 1972 she retained counsel to file suit; on April 28 she discussed the matter with an Assistant United States Attorney; and her suit was filed on June 5, 1972. On May 15, 1972 Mrs. Kunz suffered the stroke which the petitioner claims left her mentally incompetent.

In my judgment the issue raised by the petitioner is without substance, in light of the facts disclosed by the record. I find nothing to suggest that counsel for Mrs. Kunz should have refrained from filing her lawsuit, as he was retained to do, or should have withdrawn it, because she had become ill. Indeed, had counsel failed to carry out his client’s instructions he might have been guilty of professional misconduct.¹

Even assuming that Mrs. Kunz became mentally incompetent on May 15, 1972 this did not automatically terminate her counsel’s authority to file and prosecute her suit. Her illness did not infect her cause of action and in the absence of a judicial declaration of incompetency she could sue in her own name and maintain her suit. Ritter v. Ritter, 219 Ind. 487, 38 N.E.2d 997 (1942); Willett v. Webster, 337 Mass. 98, 148 N.E.2d 267 (1958); Withers v. Tucker, 32 Wis.2d 496, 145 N.W.2d 665 (1966); Neely v. Hogan, 62 Misc.2d 1056, 310 N.Y.S.2d 63 (1970). See Annot., 71 A.L.R.2d 1247.

Whether Mrs. Kunz is now able to give a deposition or otherwise respond to interrogatories is a question for the district court to decide- in appropriate proceedings. If the district judge wishes to give consideration to the appointment of a guardian ad litem for Mrs. Kunz he may do so; but these matters are not before us.

1 . The cases cited by Judge Robinson in his opinion, footnote 20, do not hold to the contrary, and in any event can be distinguished on their facts.

In Sullivan v. Dunne, 198 Cal. 183, 244 P. 343, 346 (1926), a proceeding for the appointment of a guardian for an incompetent, a lawyer attempted to inject himself into the case on the strength of a power of attorney executed six months before. The court found that the lawyer had never been authorized to appear in the matter. In Evans v. York, 217 S.W.2d 749, 751 (Ct.App. Mo.1949), a lawyer sued for compensation for services performed pursuant to a general power of attorney authorizing the performance of legal and personal services. The court held that the lawyer could not recover for services performed after her client was adjudicated insane and a guardian was appointed. Merritt v. Merritt, 27 App. Div. 208, 50 N.Y.S. 604, 605-608 (1898), was an action to foreclose a mortgage which had been executed in the name of the mortgagor by her attorney in fact. The court held that the defendant was entitled to prove that at the time of the execution of the mortgage the mortgagor was non compos mentis and this fact was known to the mortgagee when he took the mortgage.