110 Neb. 65 | Neb. | 1923
This case is brought to this court to review an order of the district court for Douglas county, directing appellant to refund $620 to his client, Anna Burkinan, within 60 days, and, on failure so to do, that he stand suspended from the right to practice as attorney at law in said county until the further order of the court.
In October, 1919, a son of Anna Burkman, while in the
Appellant contends that he made a contract Avith Mrs. Burkman and with Mrs. Mortenson^ by the terms of Avhich he Avas to prosecute both cases and receive as compensation 40 per cent, of the amount recovered. Mrs. Burkman insists that the agreement Avas that Mr. Yeiser should have such fee in the compensation case as the court might allQAV, and that he Avas to have a contingent fee of 40 per cent, of the recovery in the action against the street railway company. The committee appointed by the court to investigate and make report of the complaint found that the contract betAveen the parties provided that the compensation case against the taxicab company should be prosecuted by Mr. Yeiser for such fee as the court Avould alloAV him, and the action against the street railway company on .the basis of 40 per cent, of the amount recovered, and found that the compensation case was settled, for a total lump sum of $3,974, and that the court alloAved him, as attorney’s fee in that case, the sum of $250; that Mr. Yeiser retained out of the $3,974 the sum of $870, or $620 in excess of the court’s alloAvance.
The record shows that the action against the street railway company is still pending in the district court on a motion for a neAV trial, and that a settlement Avas made in the compensation case in July, 1921, Avhereby compensation Avas alloAved to the extent of $3,974. Mr.
Appellant assigns as error that there is not sufficient evidence to support the finding and order; that the order is contrary to larv; and that the court has no jurisdiction to enter such an order. *
The vieiv AAre take of the questions presented for determination makes it unnecessary to determine whether the contract of employment in the compensation case Avas for the percentage of the recovery, as claimed by appellant, or for such fees as the district court would allow, as claimed by Mrs. Burkman.
Section 3031, Comp. St. 1922, being a part of the Avorkmen’s compensation act, provides: “No claim or agreement for legal sendees or disbursements in support of any demand made or suit brought under the provisions of this article shall be an enforceable lien against the amounts to be paid as damages or compensation or be valid or binding in any other respect, unless the same be approved in Avriting by the judge presiding at the trial, or, in ease of settlement Avithout trial, by the judge of the district court of the district in Avhich such issue arose. After such approval, if notice in Avriting be given the defendant of such claim or agreement for legal services and disbursements, the same shall be a lien against any amount thereafter to be paid as damages or compensation: Provided, hoAvever, Avhere the employee’s compensation is payable by the employer in periodical instalments, the court shall fix, at the time of approval, the proportion of each instalment to be paid on account of legal services and disbursements.”
Appellant insists that this section of the statute, if properly construed, relates to attorney’s liens, and does not place any restriction upon the right of attorneys to contract for compensation in such cases, and, if it is
A careful examination of the statute quoted shows that it relates to claims or agreements for legal sendees and disbursements, as well as to liens for attorney’s fees, in actions or claims arising under the workmen’s compensation act. By omitting the parts of the first sentence of the statute Avhich relate to attorney’s lien, the section would read: “No claim or agreement for legal services or disbursements in support of any demand made or suit brought under the provisions of this article shall be an enforceable lien * * * or be valid or binding in any other respect, unless the same be approved in Avriting by the judge presiding at the trial, or, in case, of settlement without trial, by the judge of the district court, of the district in Avhich such issue arose. Ii seems too plain to admit of argument that the legislature intended to restrict and limit the amount an attorney could lawfully charge or contract for as compensation for legal services or disbursements, in demands or suits arising under the workmen’s compensation act, io such fee or sum as should be approved in Avriting by the district judge. It necessarily folloAvs that an attorney cannot enforce against a claimant for compensation any claim or agreement for attorney’s fees, in a suit or demand brought under the provisions of the compensation act for an amount in excess of that Avhich is approved by the district judge.
Appellant argues that the statute, if construed to regulate or restrict the right to contract between attorney and client for fees for legal services, is in violation of the provisions of the federal Constitution which guarantee “rights in property,” due process of law, and equal protection of the law. These constitutional provisions are intended to, and do, guarantee the right to make and enforce contracts as property rights, but the right to make and enforce contracts may be restricted
We hold that the statute is a proper exercise of the police power of the state, and is not repugnant to the provisions of the federal Constitution, guaranteeing lights in property, due process of law, and equal protection of the law.
Appellant contends that' the district court is without jurisdiction to suspend an attorney from the practice of his profession. The precise question has been heretofore determined in this court, where it was held that the district court was vested with power to suspend an attorney from practice in that court, but that such ■ order should be limited to suspension from practicing in the judicial district. In re Disbarment Proceedings of Newby, 76 Neb. 482.
It is but fair to appellant to say that he in good faith believed that said section 3031, when properly construed, did not limit the amount an attorney could lawfully charge or contract for as compensation for legal services or disbursements, as- against a claimant for compensation in demands or suits arising under the workmen’s compensation act, and his appeal to this court was largely for the purpose of having an interpretation of said section by the court of last resort.
While there is no error in the record, we think the order should be modified so as to permit appellant to comply with the order of the court within 20 days from the issuance of the mandate of this court before the sentence of suspension shall be. effective.
As modified, the judgment of the district court is affirmed. Affirmed as modified.