(specially concurring).
I agree that the appeal as to Count I was untimely; I agree that the summary judgment was proper as to Count II. However, I do not join in Judge Walters’ discussion of the nature of the attorney fee interest in a workman’s compensation claim, being of the opinion that such discussion is unnecessary.
The attorney had authority to reach a settlement of the workman’s compensation claim. Under In re Ward’s Estate, 47 N.M. 55, 134 P.2d 539, 146 A.L.R. 826 (1943), that authority was revoked by the workman’s death unless the attorney’s agency was irrevocable. For the authority to be irrevocable, the attorney must have had a power coupled with an interest.
“In order that a power may be irrevocable because it is coupled with an interest, it is necessary that the interest be in the subject matter of the power and not in the proceeds which will arise from the exercise of the power . . . .” Williston on Contracts (3rd ed. 1959), § 280 at page 300. Annot., 28 A.L.R.2d 1243 at 1250.
The depositions are to the effect that the attorney had authority to settle and would have not more than a 10 percent interest in the proceeds once a settlement was reached. Section 52-l-54(A), N.M.S.A.1978. Death occurred before the alleged settlement was reached. As “interest” is used in “power coupled with an interest,” the attorney had no interest in the subject matter (the workman’s claim) prior to a settlement being reached. The attorney not having a power coupled with an interest at the time death occurred, the attorney’s authority to settle was revoked by the death.