Myrick, J.
A writ of review was granted on the application of petitioner to review the action of the Superior Court had upon the following state of facts: •—
Catharine McKeever, an insane woman, and John McKeever, Jane McKeever, and Mary McKeever, minors, by their guardian ad litem, Margaret Hayes, commenced an action against the [87] Market Street Railway Company, to recover damages for the death of Daniel McKeever, the husband of said Catharine, and the father of said minors. The said guardian ad litem employed the petitioner, E. P. Cole, Esq., an attorney at law, to commence and prosecute said action as attorney for the plaintiffs. The guardian ad litem had no means with which to pay the necessary expenses of the action, including costs and the attorney’s fees, and Mr. Cole undertook to, and did pay the costs. Such proceedings were had in the action that on the 9th day of December, 1880, judgment was recovered by the plaintiffs against the railway company for $6,501.25 damages, with interest, and $108.50 costs; which judgment, on appeal, was affirmed by this court. Upon the going down of the remittitur an execution Avas issued February 3, 1882, and on the folloAving day, February 4, the iaihvay company paid to Mr. Cole the sum of $7,144.26, being the full amount then due for damages, interest, and costs; and Mr. Cole caused satisfaction to be entered. During the pendency of said appeal in this court, to aaíí, on the 28th day of October, 1881, letters of guardianship of the persons and estates of the said minors Avere duly issued by the proper court, to wit, the Superior Court of the city and county of San Francisco, to Daniel Sheerin. On the 4th day of February, 1882, the day on Avhich the attorney received the amount of the judgment, the said Daniel Sheerin, as guardian, petitioned the Superior Court in Avhich said judgment had been rendered for an order that Mr. Cole pay the money into court, and that the court fix his proper compensation. An order to show cause Avas made and served. On the hearing the attorney admitted the receipt of the money, and that he Avas ready and Avilling to pay to any person authorized to receive the same, the amount Avhich justly and fairly belonged to the plaintiffs, but objected that the court had no authority to fix the compensation, or to compel him to pay the money into court. The court overruled the objection, and after hearing testimony fixed the full compensation of counsel for the plaintiffs for services and expenses at $2,500, and ordered that the balance of the amount receÍAred be paid into court by tAvo o’clock of February 8, 1882. On the 9th day of February, 1882, Mr. Cole paid into court $4,644.26, leaving in his hands $2,500, the amount fixed by the court, and [88] on the same day the court ordered that $3,000 of the amount so paid be paid to Sheerin, the guardian of the minors, on his giving a proper bond.
The question for consideration before us is, as to the power of the Superior Court in which the action was pending, and the judgment was obtained, to fix the compensation of the attorney employed by the guardian act litem, and order the balance paid into court. It is proper to remark that the only objection appearing on the part of the attorney is as to the power of the court to make the order. It is urged on his behalf that the court had no power “to take from Mr. Cole’s pocket money lawfully in his possession, and that he claimed in good faith to be his own, and transfer it to the custody of the clerk of the court ” [we quote from the argument]; that the Constitution of this State guarantees to all the right of trial by jury, and that “ no person shall be deprived of life, liberty, or property, without due process of law ”; that he had the right to submit to a jury, in a regular action instituted to that end, evidence as to what would be a proper compensation, and to have the determination of the jury thereupon.
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Myrick, J.
A writ of review was granted on the application of petitioner to review the action of the Superior Court had upon the following state of facts: •—
Catharine McKeever, an insane woman, and John McKeever, Jane McKeever, and Mary McKeever, minors, by their guardian ad litem, Margaret Hayes, commenced an action against the [87] Market Street Railway Company, to recover damages for the death of Daniel McKeever, the husband of said Catharine, and the father of said minors. The said guardian ad litem employed the petitioner, E. P. Cole, Esq., an attorney at law, to commence and prosecute said action as attorney for the plaintiffs. The guardian ad litem had no means with which to pay the necessary expenses of the action, including costs and the attorney’s fees, and Mr. Cole undertook to, and did pay the costs. Such proceedings were had in the action that on the 9th day of December, 1880, judgment was recovered by the plaintiffs against the railway company for $6,501.25 damages, with interest, and $108.50 costs; which judgment, on appeal, was affirmed by this court. Upon the going down of the remittitur an execution Avas issued February 3, 1882, and on the folloAving day, February 4, the iaihvay company paid to Mr. Cole the sum of $7,144.26, being the full amount then due for damages, interest, and costs; and Mr. Cole caused satisfaction to be entered. During the pendency of said appeal in this court, to aaíí, on the 28th day of October, 1881, letters of guardianship of the persons and estates of the said minors Avere duly issued by the proper court, to wit, the Superior Court of the city and county of San Francisco, to Daniel Sheerin. On the 4th day of February, 1882, the day on Avhich the attorney received the amount of the judgment, the said Daniel Sheerin, as guardian, petitioned the Superior Court in Avhich said judgment had been rendered for an order that Mr. Cole pay the money into court, and that the court fix his proper compensation. An order to show cause Avas made and served. On the hearing the attorney admitted the receipt of the money, and that he Avas ready and Avilling to pay to any person authorized to receive the same, the amount Avhich justly and fairly belonged to the plaintiffs, but objected that the court had no authority to fix the compensation, or to compel him to pay the money into court. The court overruled the objection, and after hearing testimony fixed the full compensation of counsel for the plaintiffs for services and expenses at $2,500, and ordered that the balance of the amount receÍAred be paid into court by tAvo o’clock of February 8, 1882. On the 9th day of February, 1882, Mr. Cole paid into court $4,644.26, leaving in his hands $2,500, the amount fixed by the court, and [88] on the same day the court ordered that $3,000 of the amount so paid be paid to Sheerin, the guardian of the minors, on his giving a proper bond.
The question for consideration before us is, as to the power of the Superior Court in which the action was pending, and the judgment was obtained, to fix the compensation of the attorney employed by the guardian act litem, and order the balance paid into court. It is proper to remark that the only objection appearing on the part of the attorney is as to the power of the court to make the order. It is urged on his behalf that the court had no power “to take from Mr. Cole’s pocket money lawfully in his possession, and that he claimed in good faith to be his own, and transfer it to the custody of the clerk of the court ” [we quote from the argument]; that the Constitution of this State guarantees to all the right of trial by jury, and that “ no person shall be deprived of life, liberty, or property, without due process of law ”; that he had the right to submit to a jury, in a regular action instituted to that end, evidence as to what would be a proper compensation, and to have the determination of the jury thereupon.
By the law of this State, § 1021, Code of Civil Procedure, “ the measure and mode of compensation of attorneys and counsellors at law is left to the agreement express or implied of the parties ”; and in cases where an attorney is employed by a person capable of making a contract, which shall bind him or those whom he may represent, the attorney may have his action to recover the amount agreed upon in the one case, or the value of the services in the other; and in such cases, the fact of the existence of the contract and the amount agreed upon, or the value may be submitted to a jury. But, in cases where there is no one authorized to make a binding contract, the section of the Code above referred to would not apply. There must be some one on either side authorized to contract, or there is, of course, no valid contract. In Gurnee v. Maloney, 38 Cal. 85, this court held that the administrator of the estate of a deceased person could not make a contract for the payment of fees for services to be rendered by an attorney which would bind the estate. It seems to have been conceded in that case that- the administrator had power to select an attorney, but such selection would [89] be made, and the services would be rendered in view of the rule that the proper court [in that case the Probate Court] would have the right to pass upon and determine the proper compensation. In the matter before us neither of the plaintiffs in the action under consideration could have employed an attorney to commence or prosecute the action—neither could have brought the action in his or her own name—each of them was under disability; it was therefore necessary that the action should be brought by a general guardian, or by a guardian ad litem. In the case of a general guardian the appointment would have been made after due proceedings under article 2, chapter 14, Code Civ. Proc.; in the case of a guardian ad litem the appointment would be made by the court in which the action was pending, or was about to be commenced. It is not necessary to consider, in this case, the powers of a general guardian regarding the employment of an attorney; we are now considering only the powers of a guardian ad litem. The guardian ad litem is an officer of the court appointing him; his duties are “to represent the infant, insane or incompetent person in the action or proceeding.” (Code Civ. Proc. § 372.) He may, doubtless, employ an attorney to assist him in the prosecution or defense of the action, but he may not make a contract for the payment of compensation which shall absolutely bind the ward or his estate. He is like an agent with limited powers. If he collect the amount of a money judgment recovered by the plaintiff in the action, it should seem that, from the nature of his office, he may be compelled to an accounting by the court from which he received his authority. The court is, in effect, the guardian — the person named as guardian ad litem being but the agent to whom the court, in appointing him (thus exercising the power of the sovereign State as parens patria) has delegated the execution of the trust; and through such agent the court performs its duty of protecting the rights of the infant or incompetent person. His powers are certainly no greater than those of a general guardian. Like the latter he may be allowed a credit for moneys advanced or paid out of the fund collected, as reasonable compensation for the expenses, and for the services of an attorney. But he has no poAver by specific agreement Avith the attorney to fix such compensation absolutely. An attorney [90] accepting employment, and rendering services under such circumstances, must rely ujlon the subsequent action of the court in ascertaining and adjudging proper compensation. He cannot determine the amount, nor can he retain what he or the guardian ad litem may deem a proper sum, leaving it to the general guardian to sue for the excess. There is no place here for the doctrine of an implied promise upon a quantum meruit. The presumption of a promise is rebutted by the fact that the guardian had no power to contract in such manner as to bind the assets of the ward except conditionally. The attorney performing legal services for the infant aids the court in carrying out its duty of protection; he is not only an officer of the court in the general sense, but is the special agent through which the court acts; in this respect his position being analogous to that of an attorney employed by a general guardian, or by an executor or administrator. In the cases last referred to the compensation is, under our system of laws, fixed by the Probate Court. The statute being silent as to the tribunal which is to fix the com? pensation in case of a guardian ad litem, it seems to reasonably follow that the court placing him in position and making use of his service would have the fixing of his disbursements and the compensation of the attorney employed.
The cases cited by the petitioner do not apply to this case. In re Paschal, 10 Wall. 483, was a case of employment with power to contract. In that case, the party applying for the order that his attorney pay to him the amount collected, was capable of contracting, and had contracted, for the employment and for the compensation; and the attorney claimed the right to have his accounts with the client fully adjusted. The court held that' it would not, in such a proceeding, adjust the accounts, but would leave the party to his action. The court did not stand iii any such relation with the party and the attorney, as courts stand with regard to infants and attorneys acting in their behalf.
It is urged, that by not permitting the attorney for the infant to retain such portion of the money collected as he may deem just, he is deprived of his property without due process of law, and is also deprived of his constitutional right of trial by jury. The error of the petitioner is in supposing that any specific portion of the money is his property. Such portion, only, of the [91] money collected will be his property as the court may fix; and until so fixed, he has no such right of property, as is contemplated by the Constitution. In accepting the employment he consented to perform his duty without other compensation than such as might be allowed by the court. The guarantee of the right of trial by jury does not apply to such a case as this. There is no question of fact for a jury to try. The court fixes the amount, and when so fixed it is settled.
It is also urged that there was no power to direct the money to be paid on the application of the general guardian; that so long as the appointment of the guardian ad litem remained unrevolced, the general guardian had no standing in regard to the suit. It is sufficient to say that the appointment of the guardian ad litem, is made, as the name of the office indicates, for the purpose of the suit — to represent the ward in the action. When the action is terminated, the amount recovered becomes assets of the ward, to be managed and controlled for his benefit. The guardian ad litem does not manage the ward’s general estate, investing and reinvesting, but such duties are performed by the general guardian; and in order to perform those duties he should have the control of the property.
The amount allowed to Mr. Cole for his services and disbursements was twenty-five hundred dollars. The costs recovered amounted to one hundred and eight dollars and fifty cents. It would thus appear that the court allowed as compensation for services nearly twenty-four hundred dollars; and these amounts he was permitted to retain. The court certainly had power to direct him to pay over the remainder. Possibly the court might have had power, before fixing this amount for his services, to require him to pay over the whole sum collected, and afterwards make such allowances as should be just, but the court saw fit to make the allowance first, and order the balance to be paid over. We see no error.
Writ dismissed.
Morrisoh, C. J., ThorktojST, J., and Boss, J., concurred.