holding that a settlement constitutes a confession of judgment, which would satisfy K.S.A. 40-256’s requirement that a “judgment” be rendered
How later courts described this case
- holding that a settlement constitutes a confession of judgment, which would satisfy K.S.A. 40-256’s requirement that a “judgment” be rendered
- term "costs" used in statute does not include attorney fees unless expressly authorized
Written by the judges who cited it.
The opinion
Schroeder, J.,
dissenting: I fully concur in the opinion of the court on all points except the allowance of attorneys’ fees for probable future benefits to the appellee resulting from the litigation.
First, the only recovery permitted by the pleadings, had the actions been fully tried, would be an entry of judgment for $7,513. On this point counsel for the appellee were forced to argue in their brief, in support of their contention that the judgment entered by the trial court against the appellants was within the contemplation of G. S. 1959 Supp., 40-256, that:
“. . • The stipulation which is embodied in the judgment, therefore, correctly shows that the attorneys’ services had accomplished all that could he accomplished. . . .” (Emphasis added.)
Second, a stipulation fairly made between the parties and accepted in evidence should be recognized and enforced equally as to the parties. The obligation imposed upon the appellants by the stipulation for partial settlement and release has been fully recognized in the court’s decision, but it specifically provided that it be “without prejudice to either plaintiff or defendant to claim or deny payments for any future disability as the same may become due or not due under the terms and provisions of the policy.” (Emphasis added.) To make an allowance of attorneys’ fees which include “probable future benefits” completely ignores this provision that the agreement was to be without prejudice to the appellants as to the appellee’s future disability.
Third, the written contract of employment of counsel for the appellee specifically refers to the handling of “this case” on the *716 basis of the “gross amount of recovery!’ Would anyone argue under this contract that counsel for the appellee would be entitled to claim one-third of all future installment payments to the appellee after the lawsuit had been terminated by a final judgment? I think not.
Fourth, the allowance of a reasonable attorneys’ fee under 40-256, supra, is said not to contemplate an amount in the nature of a speculative or contingent fee conditioned on winning the case, but the allowance for probable future benefits completely ignores this mandate and goes one step further. It is not based upon the speculative outcome of a suit pending, but on matters which are not the subject of a cause of action, looking wholly to the future and fraught with more speculation and conjecture than the outcome of a lawsuit. (For example, death would terminate payments.) It must be noted the payments were terminated without just cause or excuse, and counsel for the appellee in all probability were not too apprehensive concerning the result of litigation.
It is respectfully submitted the probable future benefits should not have been taken into consideration in fixing a reasonable attorneys’ fee allowance. In my opinion, a reasonable fee allowance on the facts and circumstances presented by tire record in this case would be $1,800.