O'Donnell v. Broad et al.

O’Donnell v. Broad et al. Infant—-Suit by next friend. A suit of an infant by her father as next friend cannot be settled by the father without the sanction of the court. Frivolous appeals—Act of May 25, 1874. Where in such a ease an attempted settlement has been made with the father pending an appeal to this court from a verdict and judgment in favor of the infant in the court below, and the appeal has been abandoned in consequence of the settlement, damages and an attorney fee under the Act of May 25, 1874, will be awarded. Rule for damages and attorney fee under act of May 25, 1874. Appeal, No. 227, Jan. T., 1892, by defendants, Charles Broad et al., from judgment of C. P. Luzerne Co., Oct. T., 1889, No. 243, on verdict for plaintiff, Mary O’Donnell, by her next friend and father, John J'. O’Donnell, in action for personal injury, was nonprossed, April 12, 1892, for want of paper books. On April 11, 1892, James L. Lenahan, attorney of record for plaintiff, filed a certificate of the prothonotary of the court below that no certiorari from this court had been received and filed; and his own affidavits to the effect that he believed the appeal was taken for delay and to force a settlement; that the plaintiff, a minor under 14 years of age, had no guardian of her estate; that in Dec., 1891, she recovered a verdict for $950 and judgment was entered thereon; that in January, 1892, the above appeal was taken; that on March 24, 1892, defendants attempted to settle with the father, without the sanction of the court, for $750; and, on the same day, the father, without consulting deponent, who had conducted the suit, accepted the $750 and attempted to settle the suit by giving his receipt in full satisfaction of same; that the whole judgment was collectible ; that deponent believed said John J. O’Donnell to be without property and irresponsible and that he would misappropriate the fund; that no receipt in satisfaction of said judgment was on record in the court below, where an application to appoint a new next friend was then pending. Thereupon the court granted a rule to show cause why damages at 6 per cent on the verdict and an attorney fee of $20 should not be allowed under the act of May 25, 1874, § 1, P. L. 227. William S. McLean, of counsel for defendants, the same day made affidavit that the appeal was not taken for delay ; and that paper books for appellants would have been prepared in time but for the settlement óf the case for §750, evidenced by a receipt of said John J. O’Donnell as next friend, etc. James L. Lenahan, for the rule, cited Turner v. Patridge, 8 P. & W. 172; Senseman’s Ap., 21 Pa. 333. April 18, 1892: [MAJORITY — Pee Cueiam,] Pee Cueiam, Rule absolute and penalty and attorney fee allowed as prayed for.