*1 H. Buck- v. Bucknam, Appellant-Respondent, R. Downey, Respondent-Appellant. Defendant, Francis nam, 1097. (2d)W. 151 S. Two, 10,
Division Homer Cope, A. Cope & Hadsell and Walter Raymond A.
Theresa R. Buchnam. *2 Downey;
Hugh Downey B. Francis Maurice J. O’Sullivan for J. Francis M. P. Miller of counsel. O’Sullivan and John Bucknam, plaintiff BOHLING, 14, 1934, Theresa R. C. On March designated here, ob- nisi and for sometimes convenience Bucknam, County, Mis- tained а from IT. Jackson custody her of their minor David souri. The decree awarded monthly alimony Bucknam, February 19, $150 Horton born She, diffi- experiencing maintenance son. culty collecting maintenance, part latter Downey, attorney, an movant nisi and for employed Francis C. designated, convеnience to collect and maintenance. so of settlement effected between among H., agreeing, things, other and Robert Robert H. *3 Downey pay $10,000 seeking to filed a to Theresa. Mr. motion to charge $10,000 payment court, the his on with the of fee. The basis, $ip,000. him Mrs. allocated to of said Downey charge any Bucknam contends Mr. is not entitled to fee against $10,000. $8,281.04. Downey charge said Mr. contends for a of judgment Each appealed has from nisi. the February
Mr. and Mrs. Robert Bucknam were IT. married Thereafter, beneficiary Massachusetts. IT. Robert became the of a spеndthrift trust, Boston, Massachusetts, administered in created by his will and, mother’s to provisions, its was receive the corpus of the trust estate on December married a second He wife soon after the of divorce March 1934. We not detail shall Downey the efforts Mr. record, to collect. From thе his services continued until the 10,1939, consummation of the contract of June and investigations included Massachusetts, Connecticut, of the laws of Among Florida efforts, and Missouri. other was an unsuccessful at- tempt subject the spendthrift payment to the trust Theresa’s claims. Bucknam, Mass. 200 N. E. [Bucknam A. L. R. In 1938, Robert H. Bucknаm second wife 774.] City. resided in February Downey Kansas On about Mr. caused a garnishment summons in to be served Plaza on Bank the Commerce, City, Missouri, of Kansas proceedings and instituted seek- ing the provisions modification of original certain decree of divorce. 5, 1938, On March original judgment the was with modifiеd respect alimony. was, briefly, modification following the effect: In lieu of the periodical continuance 'of said alimony, gross Theresa was awarded the sum and the same was decreed a corpus the spendthrift of said trust estate eo passing instante of the title from the trusteеs to Robert IT. Robert H. post ordered bond to secure pajunent of enjoined forbidden from order of the County, Missouri, until further
departing from Jackson court.
Thereafter, adjust their said Theresa and Robert H. undertook to by 10, 1939, which, financial in so far differences the contract of June contingent material, we as deemed in briеf. This contract was outline age ‘upon attaining years; is, being Robert H. alive on of 30 20, 1939, December receiving corpus the aforementioned by Upon performance trust estate. thereof of the covenants EL, Theresa, among satisfy things, other of record was to judgments and maintenance. Robert EL pay on or 20, 1939, before December and she was $1,270.09 moneys to receive of certain Plaza Bank Commerce, and Robert II. was to trust establish Bucknam, estate use and benefit of their son David Horton material details which are more hereinafter. stated explicitly рrovided, part: may, “8. Said Theresa if desire, making she shall so after of her counsel fees and legal other expenses' from and out of the sum of Ten Thousand ($10,000) Dollars, her to paid to. said Robert as hereinabove provided, pay over to o'f the the Trustees David Elorton Bucknam any portion trust” remaining hands; her and as we read paragraph thereof, “17” she released Robert from El. possible liability for said fee. being day the same ninth of the No- vember, 1939, court, term of County the Circuit Court of Jackson upon findings that said voluntarily contract of June legally entered pellant had into and executed thereto; ap- *4 $1,270.09 received contract; the mentioned in said that said contract was fair just, entered approving an order contract, said ordered judgment that the of $50 maintenance of David Elorton vacated, Bucknam be set aside and for naught held uрon the establishment of the David Horton Bucknam trust; ordered that discharged Robert IE. stand of all obligations to alimony Theresa for satisfy and that Theresa of record judgments the theretofore awarding entered periodical gross alimony “upon the payment plaintiff, payment into this court for the benefit of plaintiff” $10,000, retaining the court jurisdiction to make such additional might orders and decrees as ’ necessary to effectuate said contract 10, of June As indicated, Robert H. Bucknam was not entitled to receive the corpus of the trust by estate established his mother until December 20, 1939. Thereafter, January 12, 1940, the being same the fifth day of the January, 1940, term, the court, upon findings that said II. had performed his covenants of the contract of June 10, the further explicit finding parties “that the to this cause have order,” and consented to this ordered that
1043 in the order of performance PI.’s contingent upon Robert orders the “It explicitly provided: 22, 1939, effectuated and November also ordered, the clerk of this adjudged further and decreed that 'Ten Thousand Dollars the sum of possession shall retain in his said him the defendant for and ($10,000), deposited heretofore ’’ orders this court. On plaintiff, on behalf of until the further January 12, 1940, orders, judgments and decrees were prior said January 16, 1940, Mr. appellant. of record satisfied on behalf Downey being original motion, filed an amendment thereof review here. Bucknam
Mrs. asserts that the final decree for was en- County tered in thе November, term of Jackson Circuit Court; Downey’s January, that Mr. motion was not filed until court, and, therefore, juris- term of said the court was without diction to entertain said motion. legis in
The
custodia
when the order of the Janu
ary, 1940,
explicitly
term was entered. Said order
recited that the
original litigants agrеed
its'provisions,
and consented
which in
provision
cluded the
clerk of the court retain
said
subject to
the further orders of the court. The contract
1939, contemplated
of movant’s fee out of the
be received
appellant.
accepted,
She
not repudiate, per
did
formance of the contract in
accord with said order
question
propriety
does not
in
portion
authorizing
court or that
deposit.
said order
Judgment
may protect
rights
proper
debtors
their
to a
satisfaction
by placing
of record
legis
in custodia
and shift from them
selves tо the law and
responsibility
the court the
determining
rights
of interested
in and to the fund.
v. Missouri
[Lawson
&
Co.,
Kansas Tel.
178
App. 124,
Mo.
;
143[11]
Noell v.
Co.,
Missouri Pac. Rd.
and contends Ann., p. sec. R. Mo. Stat. under Sec. S. awarded attоrney’s (Hilleary charge for fees may impressed with be not 282, 283; 708, 175 W. Sanner Hilleary, App. 704, Dougherty v. (Mo. App.), [1, 2]; Sanner Brown, Supp. 165 N. Y. 274, 275; In re Burger, Supp. 234 N. Y. 736, 742[3]). any contingent fee materially are concerned with
Whether we present The issue for developed. remains to be basis, charge, propriety tо the limited against $10,000 deposited in professional for movant’s services full 10, 1939, contemplated the court. The contract of June obligations adjustment final and their of Robert H.’s part son, including any on his for possible responsibility minor contract, 8 of the mentioned paragraph movant’s feе. supra.] [See approved it on provisions. court so understood its contract, according litigants, must 1939. Said obligations discharging Robert IT.’s considered either as alimony supra, for and maintenance to Theresa and for Sec. constituting a maintenance of their valid settlement of property rights H. and either between said Robert Theresa. In contracting parties contemplated event the movant would receive his mentioned, pro- out of the therein and said approval visions of received the sanction the contract along with the rest of documеnt. If the approved an allowance a divorced viewed as 1519, supra, wife under Sec. said allowance differed from the usual alimony by agreement allowances of in that between former wife subject attorney’s husband it was fee. contract, Such a if approved court, permits of the court exer cising a sound discretion, protecting the public’s interest; does infringe upon legal obligation of a husband to maintain his wife; legally subject does not an award to the wife for charge and maintenance an attorney’s unauthorized for fee. “An attorney entitled to lien on the secured him for only client in a proceeding but to the extent of his fees and costs taxed and included in the alimony. allowance of He cannot enforce the remainder of allowance, either special in that fees ease or otherwise.” Eng. Ency. Am. & of Law [3 (2 Ed.), p. par. d; quoted Hilleary v. Hilleary, supra. Con- *6 24; J., p. 77.9, nn. soc. S., p. 7 C. J. suit 388.] logic underlying is accord quotation sentence first (Banc), supra. In the instant case we v. Hostetter ex rel. State accompli appellant that the divorce overlook should fait movant the transactions employеd sole when she here awas femme in favor of ruled movant. point occurred. involved 2, 1938, appellant stating of March wrote movant date Under agreement their with respect and would abide his she understood be all sums collected in the course and: “Your fee shall fee 20% $15,000, up to of whatever is received over and proceedings you take Movant amount asserts error in that above that 50%.“ $8,281.04 (after crediting been paid) allowance should have client’s contract. The in accord with his court’s award of having advisement, special assumpsit the cause under was not on after assumpsit quantum a but under indebitatus as for meruit of com printed argument pensation. In the course movant states his specific agreement enforcement of appellant’s motion was analyzed March 1938. The motion is not are not authorities Movant cited statemеnt. has the burden appeal with error, respect to this if error. Trial courts should not convicted be dogmatic of error upon mere The motion count. assertions. one Light Doud, 445; Globe & H. Co. v. [Consult McLean, Phillippi App. 586(6); Phillips Mfg. Co., 5 Mo. v. Geiser App. 396, 402, pages S. W. It covered nine 473.] It the abstract of record. set out the contract. It also stated performed by services movant and their prayed results. It the court rights to declare the and movant $10,000
March in and to said specific and for the en forcement of the same as so construed. It also prayed the court to just dеtermine movant, due decree the same to attorney’s fee properly payable and suit movant, and decree a $10,000 deposit. therefor Suppose, we need not correctly determine not, whether the court construed said motion sounding quantum meruit or deposit paymеnt considered said 1519, supra, subject under Sec. ato reasonable final allowance there from to movant by any agreement uncontrolled with his client. In event, if erroneous, either movant’s assertion does not call for our development and discussion of the motion.
Appellant contends the $5,000 allowance of aon and, basis is excessive in her opinion, should reduced to theory on the movant directly is limited to 20 % received says her. Movant inadequate by allowance is $3,281.04. may That this determine the issue novo d& is not questioned. Manufacturing Underwriters, Lumbermen’s [Robertson 1103, 145 S. W. Mоvant’s fee not to be 134, 138[4-6].] solely by measured deposit. Robert H. Bucknam paid $15,000 trust fund court, $1,270.09, deposited $10,000 in established right except therein
for their all interest released *7 attaining prior to death event of son’s of the trust estate be based fee was to admittedly movant’s 21. understood Appellant broadly, is receive She, on “аll sums collected in cause.” he II. until David income from the for the benefit of trust estate him until he becomes payable becomes and the income is then H. was David corpus when the trust estate. he is to receive the Appellant was approximately 7 when the trust estate establishеd. corpus of the power disposition has sort of veto over said estate estate; trust is all in excess and she to receive attaining years, and prior of David death event II. ’s Ap 21 and 30. between the whole thereof the event of his death was years before the collection proximately passed four and one-half undoubtedly had effected. Movant’s recourse to the writ of ne exeat worth testimony its were effect. The that movant’s services $10,000. Movant also made offers to show between testimony advisory helpful but was reasonable. The Manufacturing necessarily binding not court. [Robertson think (Mo.), supra Lumbermen’s We Underwriters [5].] . to view the award somewhat conservative While inclined Fruin-Bam Co. (American as over liberal Surety 335), 333) we Co., brick Cons. direct movant, giving an allowance of deference $6750 to some action of the court nisi. Cooley
The.judgment reversed, accordingly. to be modified ~Westimes,CC.,'concur. C.,
PER foregoing adopted opinion Bohling, CURIAM: The All as opinion judges court. concur. Annexed, Will of the Estate A. Administrator with the Gray,
Dr. J. acting Individ- M. Administrator and such Carder, James ually, Appellant, Carder, B. Carder, Eliza v. Richard Company America, Corpora- Prudential Life Insurance tion, Defendant. 1112. Two,
Division