148 Mo. App. 164 | Mo. Ct. App. | 1910
The appellant’s intestate, hereafter referred to as plaintiff, commenced his action against the defendants, by filing a petition in which he averred that he was a duly licensed and practicing attorney; that Dora Ellson, one of the defendants, is am heir-at-law of one George T. Dunn, who died intestate in Lincoln county, this State, in 1905, and as such heir she was entitled to inherit a two-elevenths interest or share in decedent’s estate; that the defendant Robinson, after the death of George T. Dunn, was duly appointed administrator of the estate of Dunn by the probate court of Lincoln county; that he qualified as such administrator and made his final report as such administrator on the 3rd of February, 1908, upon which report the judge of the probate court made an order of final distribution of the estate of the said Dunn; that in January, 1906, the defendant Dora Ellson had made and entered into an agreement in writing with plaintiff Avherein, in consideration of the legal service to be rendered Mrs. Ellson by plaintiff and the agreement of' plaintiff to look after her interests in the estate and .represent her in all matters pertaining thereto as heir of the estate, she agreed and authorized plaintiff, as such attorney at law, to collect her interest or share in the estate when the same was to be payable on distribution, to receipt therefor in her name and stead, and further agreed to pay plaintiff the sum of fifteen per cent of
Defendants Murphy and Robinson demurred to the petition on the ground that the facts set forth in it are insufficient to constitute a cause of action. The court sustained these demurrers and plaintiff, standing on the petition, final judgment went in favor of the defendants Robinson and Murphy, the plaintiff having in the meantime dismissed as to defendant Dora Ellson. From this judgment plaintiff duly appealed to this court and pending the appeal plaintiff dying, his widow, taking out letters of administration, was duly substituted as plaintiff and appellant.
The errors assigned in this court are to the action of the court in sustaining the demurrers of defendants Murphy and Robinson. Counsel argue this case as if it arose under our statute, Acts 1901, p. 46, applicable to the lien of an attorney for his fees. We do not think it comes under that; at all events, plaintiff did not
As strong as is the case made by the petition, we are compelled to hold that on the facts therein stated, this case falls within the rule announced in Burnett v. Crandall et al., 63 Mo. 410. The case made by plaintiff is that of an assignment of a part of a claim without the assent of the debtor. In the Btirnett case, supra, our Supreme Court recognizes the rule that even equity will not enforce a claim based upon a partial assignment of the fund, the debtor not having assented to the assignment.
The judgment of the circuit court sustaining the demurrers must be and is affirmed.