Barthell v. Chicago, Milwaukee & St. Paul Railway Co., 138 Iowa 688

Barthell v. Chicago, Milwaukee & St. Paul Railway Co.

138 Iowa 688 | Iowa | 1908

Deemer, J.

One Barker had some horses killed by one of defendant’s trains, and he employed the plaintiffs, who are attorneys at law, to bring suit against the company to recover the value of the horses so killed, agreeing to give them, for services rendered and to be rendered, fifty per cent, of whatever was received from the defendant. Barker also agreed that plaintiffs should have the settlement of the suit. Pursuant to this employment suit was brought for Barker by these attorneys, and in the original notice, which was signed by plaintiffs as attorneys for Barker, they stated: “You are further notified that the undersigned attorneys claim an attorney’s lien of fifty per cent, upon the amount due or to, become due for legal services rendered and to be rendered.” After suit was commenced by the service of the original notice the defendant settled with Barker, paying him $300 in full settlement of the cause of action. Barker died shortly thereafter, and his estate was and is insolvent. Plaintiffs then commenced this action to recover of the defendant one-half of $300, the amount paid Barker upon the settlement. The defendant moved to transfer the cause to the equity calendar, and this motion was overruled. It thereupon answered, denying any liability to Barker, and pleading the invalidity of plaintiff’s contract wtih him (Barker). At the conclusion of the testimony taken on the issues joined the trial court upon motion directed a verdict for plaintiffs, and defendant appeals.

i. Attorney’s ment: forum, I. Four points are relied upon for a reversal. First it is contended that the trial court erred in denying the motion to transfer to the equity calendar. This point is ruled by our previous eases, which hold that the action is at law. Sweeley v. Sieman, 123 Iowa, 183; Ward v. Sherbondy, 96 Iowa, 477; Gibson v. C., M. & St. P. R. R., 122 Iowa, 568; Smith v. Railroad, 56 Iowa, 720.

*6908. Same: suffinotice. °f *689II. Next it is argued that the notice of the attorneys’ lien was insufficient, in that it did not state for what services *690the lien was claimed. Code, section 321, provides tbat “ tbe notice shall state the amount claimed and in general terms for what services.” Tbe notice in tbis case was embodied in' tbe original notice of suit, and advised defendant tbat tbe lien was “ for legal services rendered and to be rendered.” Manifestly this had reference to the services which had been and were thereafter to be rendered in that particular case. This was a sufficient compliance with the statute, in that it stated in general terms the services for which tbe lien was claimed. Gibson v. Railroad, 122 Iowa, 565; Smith v. Railroad, 56 Iowa, 720.

3- Attorneys: contract for services: champerty. III. Tbe next point made is that plaintiffs’ contract with Barker was and is cbampertous and void, in that the attorneys were given the right to settle the claim to the exclusion of Barker himself. There is no merit in this contention. The contract does not in terms give the attorneys tbe exclusive right of settlement. Nor does- it provide that the claim should not be settled without the consent of the attorneys, as in Boardman v. Thompson, 25 Iowa, 487. The case is more like Jeffries v. Ins. Co., 110 U. S. 305 (4 Sup. Ct. 8, 28 L. Ed. 156), and Dunne v. Herrick, 37 Ill. App. 180, which hold that such an agreement as was made in the instant case is not cbampertous nor contrary to public policy. Indeed, many courts hold that an agreement that the client shall not settle without the consent of his attorneys is not void. See Kusterer v. Beaver Dam, 56 Wis. 471 (14 N. W. 617, 43 Am. Rep. 725) ; Ryan v. Martin, 16 Wis. 57. It is enough to say, with reference to this matter, that there is nothing in the contract which deprived Barker of his right to settle.

Moreover, it is doubtful if defendant can take advantage of the contract. Small v. Railroad, 55 Iowa, 582; Ross v. Railroad, 55 Iowa, 691; Hyatt v. Burlington R. R., 68 Iowa, 662. Upon the last proposition we make no definite pronouncement at this time, for it is unnecessary to a proper disposition of tbe case.

*6914. Attorneys: suit for services: evidence. IV. Lastly, it is argued that plaintiffs must prove that Barker had a valid claim against the company; that this they did not do, and consequently they must fail. This proposition we have also decided adversely to defendant’s contention. Smith v. Railroad, 56 Iowa, 720; Parson v. Hawley, 92 Iowa, 175; Larned v. Dubuque, 86 Iowa, 166. Practically every proposition relied upon by appellant has been determined adversely to its contention by previous decisions of this court. Some of these cases -may run counter to the weight of authority, but as they have stood for many years without action by the Legislature, we are not disposed to overrule them at this time.

The trial court did not err in any of the respects complained of, and the judgment must be and it is affirmed.