29 Kan. 218 | Kan. | 1883
Lead Opinion
The opinion of the court was delivered by
“Rice County, Kansas, March 22, 1880.
“For and in consideration of the sum of five hundred dollars, to me in hand paid, and legal services for me performed, by J. H. Smith and C. T. Daniels, I do hereby sell and assign to the said J. H. Smith and C. T. Daniels an interest of two thousand (2,000) dollars in a judgment of $3,450, in my favor and against the Atchison, Topeka & Santa Fé railroad company, in the district boprt of Rice county; and I do authorize the said Smith and Daniels to reserve the said sum .out of the said judgment, when they may collect the same; or I do authorize the clerk of the district court to pay them that sum, and interest at seven per cent, on the same from January 6, 1880. Nancy C. Johnson.”
On July 19, 1880, Mrs. Johnson and the railroad company settled and compromised all their disputes, and Mrs. Johnson executed the following release, to wit:
“Judgment $3,450. — $575. — For and in consideration of the sum of five hundred and seventy-five dollars, to me in hand paid by the defendants in the above action, I do hereby acknowledge a full release, discharge and satisfaction of the above judgment and costs, and do direct, authorize and request the clerk of said court to enter upon the judgment docket of said court a full release, discharge and satisfaction of the same.
Dated July 19, 1880. (Signed) Nancy C. Johnson.
Witness: Warren Wynant, J. G. Waters.”
Thé judgment, as it appears in the records of the district court of Rice county, was duly entered satisfied;' and this release was attached to the judgment.
Afterward, and on July 22,1880, Mrs. Johnson, at the. instance of Smith and Daniels, executed the following revocation of said release, to wit:
“I, Nancy C. Johnson, do hereby declare that the foregoing instrument, purporting to be a release and' satisfaction of the foregoing judgment, was only intended as a release of fourteen hundred and fifty dollars, and interest on the same at seven per cent, since the rendition of said judgment; that the remainder of said judgment, two thousand dollars, was assigned to J. H. Smith and C. T. Daniels for services rendered and money advanced by them on the 22d day of March, 1880; and that I had no authority to settle or compromise their said interest in the said judgment, and did not intend to include their interest in the said release.
(Signed) Nancy C. Johnson.”'
This revocation was also attached to the judgment, as it appears in the records of the district court of Rice county.
The great preponderance of the evidence, if not the entire evidence, shows that Mrs. Johnson, when she entered into the contract of settlement with the railroad company, and when she signed said release, intended to include the entire judgment, and to release the entire judgment without any reference whatever to any supposed interests which Smith and Daniels might have had in the judgment. Indeed, we think it may be said that there was no competent or legitimate evidence to the contrary. But whether she could make such a settlement, and execute a valid release of the entire judgment, including Smith’s and Daniels’s supposed interests therein, is one of the principal questions involved in the case, and is really the only question in this connection. Nothing further was done in the case by either party, or by any person, until May 27, 1881.
On May 27, 1881, Smith and Daniels made a motion, in the district court of Rice county, in the name of Mrs. Johnson, to vacate and set aside her said release and satisfaction of said judgment to the extent of $2,000, and that execution be awarded on such judgment for that amount. At the June term of the district court, 1881, this motion came on for hearing, and the defendant objected, to the hearing of the motion, and to the introduction of any,evidence in support thereof, upon the ground that the matters and things set forth therein were not properly determinable by the court upon motion, but should be determined only by a jury upon proper suit brought and upon issues properly joined upon petition and answer, which objection was overruled by the court, and the defendant duly excepted. The motion was then heard by the court, without a jury, upon written and oral evidence ; and upon such hearing the court sustained the motion, and ordered that the satisfaction of the judgment previously made and entered should be vacated and set aside to the amount of $2,000, and that execution for that amount, and for costs, be awarded against the railroad company; to which order of the court the defendant duly excepted, and then moved for a new trial and a rehearing, which motion for a new trial and rehearing was overruled, to which ruling the defendant again excepted. The defendant then made a case for the supreme court, which case was duly served, settled, signed and authenticated, and the defendant now, as plaintiff
There are many questions involved in this case, some of which are difficult to be determined, though many of them we think are easy of solution.
That Mrs. Johnson’s judgment was valid and binding as qgainst the railroad company up to the time when she and the railroad company made their settlement, we think there can be no question; for the judgment was rendered by a court of competent jurisdiction, which at the time had jurisdiction of all the parties and of the subject-matter of the action; and the judgment remained valid and unsatisfied and unreversed up to the time when such settlement was made. No champertous contract on the part of Mrs. Johnson and her, attorneys could have the effect to destroy Mrs. Johnson’s right to prosecute the action to judgment, and to enforce such judgment against the railroad company. (Allison v. C. & N. W. Rld. Co. 42 Iowa, 275; Courtright v. Burns, 14 Cent. Law Jour. 89.) Also, except for the interest which Smith and Daniels are supposed to have had in Mrs. Johnson’s claim and judgment against the railroad company, she and the railroad company had the incontrovertible right at all times to.settle and compromise all their disputes, and finally to have the judgment rendered between them released, satisfied and discharged, and wholly annulled, and to do so in the very manner in which, and for the very consideration for which, all these things were attempted to be done by them. This we think necessarily follows from the decisions heretofore made by this court in the cases of Walrath v. Walrath, 27 Kas. 395, 399, and Clay v. Hoysradt, 8 Kas. 74. See also Read v. Hibbard, 6 Wis. 175. The question then arises: Could Mrs. Johnson and the railroad company so settle their affairs'and so release, satisfy and discharge said judgment, that the settlement and discharge would be valid and binding upon all parties, including Smith and Daniels, motwithstanding the supposed interest which Smith and Daniels
The question whether the railroad company had any notice of the assignment "by Mrs. Johnson to Smith and Daniels, was at the time of the hearing of the motion, and still is a disputed question of fact. The question, however, was submitted to the court below principally upon oral testimony; and this testimony was very conflicting and so evenly balanced as to make it very difficult to determine upon which -side the preponderance existed; and the court below found in favor of Smith and Daniels, and against the railroad company; and therefore we must now hold, for the purposes of fhe case, that the railroad company had notice of the assign - ment. This supposed notice was given some time after the assignment was made, and at most, was given only in parol; and therefore the further question arises: Is a notice in parol sufficient in such a case?
It would,, perhaps, be proper here to state that Smith and Daniels do not claim to have, or to be entitled to any attor
Authorities may be found, holding that a contract between an attorney and his client for a purely contingent fee, or a contract of purchase and sale between an attorney and his client of an interest in tangible property adversely claimed, or adversely held by some third person, which property is then, or is likely to be, the subject of litigation, is not a
“Question: State the contract you and Smith made with Mrs. Johnson, in regard to your interest in this judgment.? Answer: The contract was that we should take the case and pay all the expenses of the suit, and give her either $1,500 or one-half of the judgment.
“ Q,. You were to attend to the litigation and pay all the expenses of the suit? A. Yes, sir.
“ Q,. All other attorneys in the case you were to pay ? A. Yes, sir.
“Q,. If there were any other attorneys employed in all that time, all expenses were to be paid by you and Smith ? A. Yes, sir.
“Q,. This instrument (the assignment) was simply carrying this out? A. Yes, sir; it was made the 22d day of March.
“ Q,. Simply making it in writing ? A. Yes, sir. The contract was made long before.
. “ Q. But not reduced to writing? A. No, sir. We went and asked her how she understood the contract.
“ Q. Was that $500 (mentioned as a part consideration for the assignment) ever paid? A. We did not pay that amount at that time.
“Q,. That was simply inserted? A. We had paid a good deal.
“ Q. That was simply to cover what the expense of litigation had been to you? A. I don’t know how much we had paid at the time.
“ Q,. You don’t mean that you paid her that $500, in money? A. No, sir.”
The assignment was for no other or additional consideration than the original champertous contract, and the services
The plaintiff in error, defendant below, raises the further question that a judgment cannot be so divided that a portion thereof may be assigned to a third person, and the other portion retained by the judgment creditor; and cites, as authority therefor: Love v. Fairfield, 13 Mo. 300; Mandeville v. Welch, 18 U. S. (5 Wheat.) 286; and Freeman on Judg-' ments, §424. We suppose that a portion of a judgment
There are some other questions involved in this case, not yet decided; but .we do not think that it is necessary to decide t^iem now.
The' order of the court below sustaining the said motion will be reversed.
Dissenting Opinion
dissenting.
I dissent from the opinion and judgment in this case. Whatever might have been the force of the plaintiff’s release, if there had been no assignment by her of the portion of the judgment, after such assignment and after knowledge thereof by the railroad company, I think the interest of the'attorneys in that judgment should be protected. It is conceded in the opinion that ah assignment of a portion of the judgment can be enforced in equity whenever it is equitable that the same should be enforced; and I think in this case it is equitable that the assignment be.enforced. It is clear that the attorneys paid out money and did work, and I think it equitable that they should receive compensation therefor. Prior to the release, I believe we all agree that the railroad company could not raise the question of champerty, and prior to the company’s obtaining the release, the plaintiff and her attorneys had satisfactorily adjusted the amount of compensation, and she had assigned a portion of the judgment in satisfaction thereof. When all this had been done, and done with the knowledge of the company, I think its settlement with the plaintiff gave it no right to challenge that assignment. I think it highly inequitable that it should be per