D. C. Heath & Co., &c. v. Commonwealth, &c.
being simply the officer of the State authorized to institute the suit for it." This being true, when the present county superintendent entered her motion to dismiss the action, the county attorney had the right, and it was his duty, to object to and resist the granting of the motion. Had the county superintendent withdrawn from the action after the refusal of the court to dismiss it, such action upon her part could have had no effect upon the case. In Wright v. Baker, 94 Ky. 343, 22 S. W. 335, 15 Ky. Law Rep. 109, which was a suit brought in behalf of a school district, two of the trustees attempted to withdraw from the suit, with respect to which this court said: "The effort by the two Bentleys to withdraw their names as plaintiffs in the action did not affect the proceedings."
Section 130, Ky. St. 1903, relating to the duty of county attorneys, provides: "He shall investigate and inquire into the condition of all unsatisfied judgments in his county in favor of the Commonwealth, and take all necessary steps, by motion, action or otherwise, to collect or cause the same to be collected and paid into the State treasury." Under the authority here given the county attorney had the right to take such action as would compel the payment by appellants of the judgment of $10,000 rendered against them by the Mercer circuit court, and it is further his duty, upon collecting the judgment, to see that it is "covered into the school fund of the county," instead of being paid into the State treasury; such disposition of it being required by section 4423, Ky. St. 1903. In the absence of statutory authority to that effect, we cannot afford to say that county school superintendents may exercise such powers as were exercised by the two super
D. C. Heath & Co., &c. v. Commonwealth, &c.
intendents of Mercer county in the matter of the attempted compromise of the judgment of the Mercer circuit court, as to do so would tend to destroy in large measure the salutary aim of the statute with reference to the sale of schoolbooks in the State, which was and is to prevent extortion and fraud upon the part of those permitted to supply its schools with these instruments for the mental and moral advancement of the children within its bounds.
Finding no error in the rulings of the circuit court, the judgment is affirmed.
Petition for rehearing by appellant overruled.
ADMINISTRATORS-See Principal and Surety 6.
APPEALS-See Carriers 22-Courts 9, 10-Criminal Law 23--
Homesteads 1-Life Insurance 9-Master and Servant 19, 20,
22-see Penal Actions 1, 9-Personal Injuries 1, 9-Vendor and
Purchaser 12, 13—
1. Appeal and Error-Right to Appeal-Amount in Controversy.
-Several creditors filed a joint petition against their common
debtor and his transferees, asserting claims of less than $200
each. The court approved the claims, found that a transfer
of stock was fraudulent, and directed that the stock be
subjected to the extent of $1,000 to the payment of the claims.
Held, that the amount involved, as affecting the transferees'
right to appeal, was $1,000. Singletary V. Boener-Morris
Candy Co., &o.,
....556
Same Review-Scope.-The chancellor, in a suit by several
creditors against a common debtor and his transferees, not
having found that a particular transfer was fraudulent as to
the creditors, that branch of the case is not presented on
appeal by another transferee from a judgment subjecting
property transferred to him to payment of the claims.
Idem
.....556
3. Pleading-Answer-Sufficiency of Denial.-Under the rule
that a pleading must be construed most strongly against the
pleader, creditors having alleged in a suit brought July 23rd
that their debtor transferred property April 27th, an answer
denying that the transfer was made April 27th, or on any
other date in April, did not put the date of the transfer in
issue, as affected by the statute requiring suit to be brought
within 90 days from that date, since under the answer, the
transfer might have been made between May 1st and the
bringing of suit. Idem...
...556
4. Fraudulent Conveyances -
Constructive Fraud Creditors'
Right to Recovery.-Where creditors base their right to re-
covery solely upon Acts 1904, p. 72, c. 22, protecting them
against certain constructive fraudulent conveyances, but pro
viding that no jobber, etc., shall have any lien on goods not
sold by him, they must by pleading and proof bring them-
selxes within the statute; and plaintiff creditors, having
Appeals Attorney and Client.
failed to show that goods sold by them formed a part of the
stock transferred by their debtor to defendant, cannot sub-
ject the stock to their claims. Idem.....
Same. In a suit to subject goods to the transferror's cred-
itor's claims, it is improper to adjudge a sale for a sum
exceeding the amount of the claims. Idem...... ......556
6. Review-Objections Not Raised Below. No objection having
been made in the trial court in a suit to subject goods to
the transferror's creditors' claims to the court's jurisdiction,
or to joinder of parties, and the transferror not appealing
from the judgment, the Court of Appeals will not review such
objections on the transferee's complaint. Idem..........556
7. Verdict-Amount of Recovery.-Where a verdict appears to be
the result of the jury's honest judgment, and not of passion
or prejudice, it will not be disturbed on appeal as allowing
an excessive recovery. L. & N. R. R. Co. v. Pedigo.......661
8. Review-Verdict-Conclusiveness.-A verdict will not be dis-
turbed, as flagrantly against the weight of evidence, where
the testimony of several witnesses on each side conflicts.
L. & N. R. R. Co. v. Veach's Admr.....
...775
9. Right to Appeal-Effect.-The right of appeal may exist inde-
pendently of whether appellant will be entitled to the relief
sought thereby. D. C. Heath & Co. v. Commonwealth...835
1. Attorney's Lien-Enforcement-Prosecution of Appeal.-The
attorney of a judgment creditor cannot appeal from an order
sustaining exceptions to the title of land sold on execution
under the judgment in the name of the client at the client's
expense, and against his consent, because of the attorney's
lien on the judgment for fees. Nixon v. Ossenbeck, &c.,..588
2. Disbarment-Proceedings-Statutes.-Ky. St. 1903, section
1903, providing that any attorney wrongfully refusing to pay
over money collected for his client may be suspended from
practice by the circuit court for a specified time, and until
the money shall be paid, affords the client a speedy remedy,
but does not prevent proceedings in the name of the Common-
wealth for the disbarment of the attorney. Commonwealth
v. Roe.....
...650
3. Same.-Ky. St. 1903, section 97, providing that no person
convicted of treason or felony shall be permitted to practice
as an attorney, while it points out two causes that peremp-
torily warrant disbarment, does not limit the right to disbar
for the causes mentioned. Idem....
...650
ATTORNEY AND CLIENT-Continued-
4. Same Power of Courts.-Courts, independent of statute, may,
on the motion of the Commonwealth by its attorney, after
due notice to accused and fair opportunity for hearing, disbar
an attorney guilty of such personal or professional conduct
as proves him to be unworthy to have his name on the rolls.
Idem
.650
5. Same. The power inherent in courts to disbar attorneys for
cause should be exercised with moderation and judgment.
Idem
6. Same-Professional Misconduct.-An attorney who intention-
ally and wrongfully withholds after demand money collected
for his client is guilty of misconduct warranting his disbar-
ment. Idem.....
7. Duties and Liabilities-Fraud
.....650
Attorney.-Courts will
examine critically transactions between attorney and client,
to protect the client's rights and prevent fraud by the attor-
ney; and any disadvantage to the client from the transaction
will enable him to relief, proof of actual fraud being un-
necessary. Palm's Admr. v. Howard....
....668
8. Same Effect on Contracts.-An attorney owes his client the
utmost good faith in all transactions between them, and equity
will avoid any contract made upon any misrepresentations
or concealment of material facts by the attorney, or if there
is a just suspicion of artifice, or undue influence, and will so
far as possible restore the parties to their original rights.
Idem
....668
9. Same-Actions for Wrongful Acts-Burden of Proof.-One
charged with taking advantage, for his own benefit of con-
fidence placed in him by another, must show that the con-
fidence was not abused; and where a slient claims that his
attorney, for his own benefit, fraudulently concealed facts
material to the client's interest, the burden is on the attorney
to prove that he took no advantage of his client. Idem....668
Same Fraud-Right to Recover Money Wrongfully Paid.-
Where a client, thinking he owned a tract of land which he
had never seen, employed an attorney to inform him of the
nature of his holding, protect the land, and sell it if possible,
and the attorney knowing his client had no title and that the
land was held adversely, did not inform him of such facts,
but led him to believe he owned a valuable piece of land,
and did not attempt to sell the land as agreed, the attorney's
conduct was such an abuse of confidence as to entitle the
client to recover the money paid him as salary under the
contract. Idem...
..668
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