Case 1 — Action by Ben. Spaulding against C. .S. Hill to Recover a Percentage on Certain Judgments in Suits Instituted While Plaintipe was County Attorney.

March 3.

#### Spaulding v. Hill.

APPEAL PROM MARION CIRCUIT COURT.

Judgment for Defendant and Plaintive Appeals.

Affirmed.

Prosecuting Attorneys — Pines—Commission—Expiration of Office —Validity of Agreement to Compromise Prosecutions.

Held: 1. Kentucky Statutes, section 133, provides that in all prosecutions in the circuit court, when the county attorney is present and assists, he shall receive from the State treasurer twenty-five per cent, of all judgments rendered in favor of the Commonwealth. Held, that such section referred to the county attorney who assisted in the prosecution when the judgment was rendered, only, and did not entitle a county attorney to an allowance where his term of office expired before the rendition of judgment, though he assisted at the trial.

2. Where, after a successful prosecution of two indictments against a railroad company it was agreed between the Commonwealth’s attorney and defendant’s attorney that an appeal should be taken, and if the judgment should he affirmed the railroad would consent to a fine in each of three of twelve remaining indictments, and that the remaining nine indictments should be dismissed, such agreement was not binding either on the attorneys or on the court; and whether it should be acted on, on affirmance of the judgment appealed from, was within the trial court’s discretion.

*2J. P. THOMPSON and S. A. RUSSEDL, rob appellant.

The appellant, Ben. Spaulding, was certainly present and assisted in the prosecution of the L. & N. it. R. Co., in all the indictments that were procured against it. There are only two questions for the court to consider.

1. Wer,© the judgments at the January term, 1902, entered in pursuance of the agreement made and entered into between the Commonwealth and the railroad company?

2. Do, the judgments relate back to the date of that agreement?

¡We think the court will have to answer both questions in the affirmative.

In law and justice the man who does ithe work is entitled to ■the commission. It is not pretended that appellee, Hill, rendered any service whatever. If there had been ,a trial at the January term, 1902, after Hill went into office and he had been present and assisted, he would have been entitled to the commission; but there being no trial at that time, no assistance could •he rendered by him. 'The service had all been previously rendered by appellant, Spaulding, and the judgments were entered pursuant thereto.

H. W. RIYES, attorney rob appellee.

The court was not a party to the private agreement made, between the Commonwealth’s .attorney and the attorney ofi the railroad company, that if the appealed cases were affirmed, the company would confess judgment in three of the remaining indictments, and the other nine should be dismissed. Neither the court nor the attorney for the Commonwealth, nor the railroad, was bound by this agreement, although the court may, where it is satisfied such agreements have been made in good faith, allow the judgments to, be entered accordingly on the motion and consent of the parties making them.

The right of the Commonwealth’s attorney as well as the ■county attorney to a per cent, of the fine does not accrue until the rendition of the judgment, and at the time the judgments were entered in these cases appellant was out of office and appellee was in office, and was present consulting and advising with the Commonwealth’s .attorney, and is clearly legally entitled to the commission.

Opinion or the court delivered bv

JUDGE NUNN

Aeeirming.

Ben Spaulding was-the county attorney of Marion county from January, 1898, to the sixth day of January, 1902, on. which date appellee. C. S. Hill, succeeded him in said *3office. During the term of appellant’s office the grand jury of Marion county returned 14 indictments against the Louisville & Nashville Railroad Company, and two of said indictments were tried before a jury; the verdict being a fine of $300 in one case, and $350 in the other. The railroad’s counsel, desiring to appeal from the judgment to test the liability of said railroad, made a private agreement with ■the Commonwealth’s attorney, W. H. Sweeney, that the remaining indictments be filed away, and, in the event the judgment in the two cases mentioned were affirmed on appeal, then, in such event, the railroad company would -consent to a fine of $400 in each of three of the other cases'; the other nine to be dismissed: Some time in the latter part of the year 1901 the judgments in the two cases were affirmed. The Gommonwealth’s attorney had the 12 cases ■reinstated on the docket, and at the January term, 1902, and after the appellee, Hill, had been inducted into office, a judgment of $400 in each of the three cases was rendered against the railroad company, and the nine remaining cases’ were dismissed. The issue between these parties is as to who is entitled to the 25 per cent, allowed to the county attorney, of said last three judgments; each of them claiming that they were present and assisting in the obtention of the judgments. The appellant filed his petition, claiming the $300, and asked the court to enjoin the Auditor of the State from paying, and the appellee, Hill, from receiving, the sum. The lower court refused to grant the injunction, and dismissed appellant’s petition, and the appellant is here on appeal.

Appellant claims that he aided and assisted in getting up the evidence upon which the grand jury returned the indictments; that he was present and consented to the agreement between the Commonwealth’s attorney and the rail*4road’s attorney, and that, by reason of the private agreement between the Commonwealth’s attorney and the railroad’s attorney, the liability of the railroad was fixed upon a contingency dependent upon the result of the appeal from the two first judgments; and that the judgments wer© affirmed during his term of office, which, he claims, fixed the liability of the railroad to pay the $1,200 (which by the agreement it had promised to pay), although the judgments were not rendered thereon during his term of office.

Section 133-of tbe Kentucky Statutes provides: “In all prosecutions in the circuit court when the county attorney is present and assists in the prosecution, he shall receive from the State Treasurer 25 per cent, of all judgments rendered in favor of the Commonwealth,” etc. It is plain that it was contemplated by the statutes that the county attorney that was present and assisting in the prosecution at the time of the rendition of the judgment was entitled to the per cent, allowed by the statute. To construe the statute otherwise would bring about endless confusion and litigation, and every outgoing county attorney would claim and demand a part of the 25 per cent, on each judgment on prosecutions originating during his term of office, to the extent of his labor and service rendered therein. The agreed ment made by the Commonwealth’s attorney and the attorney for the railroad was not binding upon either, and certainly was not binding upon the court. The court or either of the parties could have ignored it, and it did not fix the liability of the railroad company in the event the appeals were affirmed. It could have pleaded “Not guilty,” and have had a trial by the court or jury, in each or all of the twelve indictments. And the Commonwealth’s attorney could have forced the railroad to have tried all the eases, and it was *5within the discretion of the court to render the judgments in accordance with said agreement, as it did, or refuse.

Perceiving no error, the judgment of the lower court is affirmed.