77 Neb. 446 | Neb. | 1906
Lead Opinion
On May 14, 1900, Mary Lewis instituted an action in the district court for Douglas county, Nebraska, against the Omaha Street Railway Company to recover damages for personal injuries. The suit was filed by Will A. Cor-son, an attorney of Douglas county, and the proposed in-tervener in this cause of action. After the suit was filed a demurrer was interposed to the petition by the street railway company and was sustained by the district court. Mr. Corson then employed George W. Cooper, Esq., to assist in the prosecution of the case, and on January 16, 1901, an amended petition was filed, and issues were joined thereon. While the cause, was pending, negotiations for a settlement of the claim were had between Mr., Corson, as attorney for the plaintiff, and Honorable John L. Webster, as attorney for the defendant. While these negotiations were pending, in April, 1902, Mr. Corson became temporarily mentally deranged from nervous pros
In September, 1902, and about five months after Mr. Corson’s illness began, Mrs. Lewis, being Avholly unable, as she said, to confer with her attorney, and- having learned that his office Avas closed and that he was in an asylum for treatment, communicated through Mr. Neary with T, J, Mahoney, Esq., and requested him to enter into
It is only fair to the professional standing of all the attorneys involved in this controversy to say that there is not a syllable of testimony in the record that even remotely tends to show ány collusion or fraud on the part Of any of them in procuring a settlement of the claim.
It is a principle universally recognized in the courts that a contract for legal services is personal in its nature, and consequently unassignable, and that death or disability, which renders performance impossible, discharges the contract. Now, there is no dispute in the record as to the fact that Mr. Corson, before either procuring a judgment or settlement of the claim, was unfortunately disabled by disease from performing his duties as plaintiff’s attorney, and as he was without authority to assign his contract to anyone else, the contract was annulled, and Mrs. Lewis was fully justified in procuring other counsel to protect her interests in the suit. As there is no valid claim for services existing in favor of the proposed inter-vener and against his client, no lien could attach to any money received in settlement of the claim. In this view of the matter it is unnecessary to express any opinion on the other questions discussed in the briefs. We therefore recommend that the judgment of the district court he affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.
Rehearing
The following opinion on rehearing was filed December 18, 1907. Former judgment of affirmance, as modified, adhered to:
1. Attorney and Client: Disability: Action. If the party to an entire contract for personal services, who is to render the service, becomes, by reason of physical disability, through no fault of his own, unable to perform the same, the contract is discharged, but he may recover the reasonable value of his services rendered upon a quantum, meruit.
2. Attorney’s Lien. An attorney may have a lien upon the claim of his client in an action for personal injury.
*450 3. Intervention After Dismissal. Where a settlement has been made between the parties to an action and the action dismissed after notice of an attorney’s lien has been given, the attorney may, in a proper case, move to set aside the judgment of dismissal and be allowed to intervene as a party plaintiff to establish his lien.
4. -: Review. Under the facts set forth in the opinion, held that the order of the district court refusing to set aside the order of dismissal and to allow a hearing upon a petition in intervention was not erroneous.
6. Dormer opinion adhered to, save as modified by paragraph one of the syllabus.
This is an action for personal injuries. A contract was made by the plaintiff, Lewis, with the intervener, Corson, for legal services. The case was settled by the parties and judgment of dismissal was entered. Corson now seeks to reopen the case to establish an attorney’s lien which he asserts against the defendant. A full and detailed statement of the facts in the case may be found in the former opinion by Mr. Commissioner Oldham, ante, p. 446.
In the former opinion the principles are laid down that; a contract for legal services is personal in its nature, and consequently not assignable, and that death or a disability, which renders performance impossible, discharges the contract; that therefore, since Corson, before procuring a judgment or settlement of the case, was disabled by disease from performing his duties as attorney for plaintiff, the contract was annulled; that he had no valid claim for services performed against his client and therefore no lien could attach. We have no fault to find with the holding that a contract for legal services is personal in its nature and nonassignable, or that disability discharges such a contract. We think, however, that, if a disability occurs after a special contract for services has been partly performed, this does not prevent the disabled party, if the breach of the contract was made through no fault of his own, but by the act of God or unavoidable casualty,
It is contended that the lien which was filed was not sufficiently specific or particular to give the defendant notice that the lien was claimed upon anything but a judgment which might he rendered. The notice was that the attorney claimed a lien for one-half of “whatever judgment is recovered,” and it is said, since no judgment was recovered, no lien can be asserted. We think this is carrying refinement to excess. The object of the notice was to give the defendant knowledge that the attorney claimed one-half of any money which the plaintiff Avas entitled to recover from the defendant upon the cause of action, as a recompense for his services as attorney. As a matter of fact, the notice proved effectual to do this, because the record shows that Mr. Webster, the attorney for the defendant, spoke to Mr. Parrish, Avho had acted for Corson in the filing of Corson’s lien, of the existence of Corson’s claim, and to Mr. Mahoney, who succeeded. Corson as attorney for Mrs. Lewis.. We do not think that the law contemplates that parties can come together and settle pending actions in such a way as to deprive an attorney of his right to compensation, when both know that he makes such a claim and has given notice of it.' Cones v. Brooks, 60 Neb. 698.
It is objected, further, that the lien was not filed until after Corson had ceased to he the attorney for Mrs. Lewis, and after Mr. Mahoney had been employed. It is suffi
It is strongly contended that the action being one not arising out of contract, but to recover damages for a personal injury, and the claim not having been reduced to judgment, the right to a lien does not exist. We are aware that many courts are committed to the doctrine that parties to suits for personal injuries may settle or compromise such actions between themselves without reference to whether services have been rendered to the plaintiff by at
The point in the case which has given us the most difficulty is one which is, to some extent, discussed in the original brief of the defendant.. It appears that after Mr. Mahoney took charge of the case for Mrs. Lewis and negotiations of settlement were pending between Mr. Webster and him, Webster stated to Mahoney that Mr. Cooper claimed some interest in the case, and that Mr. Parrish also claimed to represent Mr. Corson, and that he, Webster,. wished to have a final and complete settlement so that all the parties would be satisfied. Mr. Webster also, on two occasions, spoke to Mr. Parrish on the street regarding the case, and mentioned the fact to him that Mr. Mahoney now appeared for the plaintiff, and suggested that if Mr. Parrish claimed any interest in the case for Mr. Corson he had best confer with Mr. Mahoney about it before the settlement should be completed. As to these facts there is no conflict in the testimony. Mr. Parrish testified that he, on one or two occasions, had some conversation with Mr. Webster regarding the case, or a possible settlement thereof, and was advised by Mr. Webster that Mr. Mahoney claimed to represent Mrs. Lewis, and that he was endeavoring to negotiate a settlement, and
The opinion in the former case is adhered to, as modified by the foregoing.
AFFIRMED.