178 Mo. App. 124 | Mo. Ct. App. | 1914
Lead Opinion
This is a suit by Etta C. Lawson, Executrix of C. C. Lawson, deceased, against respondent for an attorney’s fee under the Attorney Lien Law, sections 964 and 965, Revised Statutes 1909.
1. That in July, 1911, one J. Ida Allen met with an accident in Pettis county, Missouri, and sustained certain alleged injuries claimed to have been caused by the negligence of respondent.
2. That some time after her accident Miss Allen employed said C. C. Lawson, an attorney of the Pettis county bar, to institute suit against respondent to recover damages.
3. That before said suit was filed C. C. Lawson, by and with the knowledge and consent of Miss Allen, associated with him for the purpose of assisting in bringing and prosecuting said suit, R. S. Robertson, an attorney of the Pettis county bar.
4. That on August 21, 1911, C. C. Lawson and R. S. Robertson, as attorneys for Miss Allen, instituted suit in the Pettis county circuit court against respondent, the petition being signed by C. C. Lawson and R. S. Robertson, attorneys for plaintiff.
5. That on October 9, 1911, respondent herein (defendant in said suit) filed a demurrer to Miss Allen’s petition; that-said C. C. Lawson and R. S. Robertson argued said demurrer for the plaintiff in that case, and said demurrer was overruled; that the said defendant thereupon filed answer on December 4, 1911, and a reply was filed thereto signed “C. O. Lawson and R. S. Robertson attorneys for plaintiff.”
6. That on December 20, 1911, the trial of that' case was begun, but the court sustained an objection
7. That on February 5, 1912, the said C. C. Lawson and R. S. Robertson filed an amended petition in said cause.
8. That from the time of instituting said suit up to February 26,1912, the date of the death of said C. C. Lawson, C. C. Lawson appeared as one of the attorneys of record for Miss Allen in said case.
9. That after O. C. Lawson’s death on February 26, 1912, Charles E. Yeater, an attorney of the Pettis county bar, became one of the attorneys of record for Miss Allen in her case against respondent, and continued to be an attorney of record to the dose thereof.
10. That on May 27, 1912, said Charles E. Yeater and R. S. Robertson as attorneys for Miss Allen filed a second amended petition in said cause and the case was then continued to the October term, 1912.
11. That R. S. Robertson and Charles E. Yeater tried the case and obtained judgment for $750 October 9, 1912.
12. That on October 10, 1912, the day following the rendition of judgment, the attorney for plaintiff in the cause now before the court met one of the attorneys for defendant in the Allen suit and casually mentioned the fact that C. C. Lawson or his estate was entitled to a fee or a part of the Allen judgment. No demand was made concerning the payment of said judgment, and what was said was only in general conversation. No notice of attorneys lien was filed or served by any of Miss Allen’s attorneys; nor was any notice given or served upon respondent that C. C. Lawson’s estate
13. That said judgment was paid October 16, 1912, by check drawn in favor of E. S. Eobertson and ■Charles E. Teater, attorneys of record for Miss Allen, and that said Eobertson and Teater accepted said •check in payment of the Allen judgment, cashed the •same, and satisfied the judgment as attorneys of ree■ord.
14. That respondent had.no knowledge of the relations, contractual or otherwise, existing between Miss Allen and her attorneys, or between her said attorneys, except such as was shown by the record.
15. That E. S. Eobertson .was at all times an attorney of record for 'Miss Allen in her case; that he was in fact the actual attorney in the case, both before •and after the death of O. O. Lawson.
16. That said C. C. Lawson and E. S. Eobertson were not general partners in the practice of the law. 'C. C. Lawson received no compensation for his ■services in said suit during his life time nor has his estate received any since his death.
The court rendered judgment for defendant, and the executrix of C. C. Lawson’s estate has appealed. If her appeal is sustained, the case must, under the ^agreed'statement of facts, be reversed and remanded with directions to render judgment in her favor for '$187.50.
The attorney, C. C. Lawson, was entitled to compensation for the services he actually rendered even 'though they were prematurely terminated by his death. '[Callahan v. Shotwell, 60 Mo. 398; Senneff v. Healy, 135 N. W. 27; Morton v. Forsee, 249 Mo. 409.]
By the terms of the statute every attorney who appears has a lien upon the cause of action which attaches to the judgment and the proceeds thereof in
Applying these principles to the ease in hand, we see that Lawson, being one of the attorneys who brought the suit for Miss Allen and who appeared therein for her, was entitled to be compensated for the services performed by him; that his right to compensation for the services he actually rendered is not defeated even though his services were prematurely terminated by his death; that the services thus actually rendered by him are agreed to be worth $187.50 if his estate is entitled to recover anything. We see also that under the statute and authorities hereinabove cited, Lawson obtained a lien for said services on the cause of action in that case, and that said lien attached to the judgment obtained therein. Said lien passed to the legal representative of Lawson upon his death. [White-cotton, Admx. v. Railroad, 250 Mo. 624.] No notice of decedent’s lien was necessary after suit was filed and summons served, since he was one of the attorneys who brought the suit and appeared in said case. This was all the notice required. [Whitecotton, Admx. v. Railway, supra, and cases cited.]
The agreed statement of facts shows that Robertson was employed with Miss Allen’s knowledge and consent. This made Robertson and Lawson cocounsel
So that, when the judgment was rendered, there was a lien in favor of Lawson for the services he had rendered and also one in favor of the other attorneys for the services they rendered. Therefore, it would seem that since neither Lawson nor his. estate has been paid for the services he rendered, there exists a lien for such services which the estate can enforce against someone unless the same has been lost or discharged.
But defendant says that Robertson as counsel for plaintiff throughout, both before and after Lawson’s death, had the right to accept payment of said judgment and that payment to him was a valid payment. Doubtless it was a valid payment of the judgment, but is it a discharge of Lawson’s lien? Robertson was not a partner of Lawson’s. He was attorney for Miss Allen, cocounsel with Lawson, and not merely Lawson’s agent to assist him. And. if there was any element between them by reason of the fact that Lawson may have selected or chosen Robertson to be the co-counsel, still such agency relation was terminated by Lawson’s death. So that Robertson had no authority, as agent for Lawson, to release Lawson’s lien after Lawson’s death, by receiving payment from defendant. In Thompson v. Thompson, 134 Mo. App. 591, the co-counsel receiving payment were the agents of the one-claiming a lien at the time payment was made, and paArment to the agent was payment to the principal in that case. In Compher v. Telephone Co., 137 Mo. App. 89, the money was deposited in court by being paid to the clerk, the settling defendant taking care to notify the claimant of the lien that it would do so. The clerk paid it to G-utkrie whom the lien claimant had made his-agent by employing him to assist. Of course, payment
Bnt defendant says that the Attorneys Lien Statute was not intended to protect one attorney from another but only to protect an attorney from his client. The statute does not so state. It gives every attorney, who appears and renders service, a lien which cannot be affected before or after judgment. Payment to the 'client will not defeat the lien. Then how can payment to that client’s other counsel defeat the lien unless there is such a relation existing between such other counsel and the lien claimant as to make the receipt of the judgment by such other counsel the act of, and binding upon, the lien claimant? But it is urged that as section 964 gives Lawson’s estate a lien on the proceeds of the judgment into whosesoever hands they come, and as Robertson and Yeater had a right to receive payment of the judgment and the same was paid to them, then Lawson’s estate should follow the fund rather than go upon defendant and require it to pay again. This view is presumably based on the theory that defendant in this case has paid after judgment, and therefore plaintiff must follow the fund since section 964 does not say in explicit terms that defendant shall be liable, but only that plaintiff has a lien which follows the proceeds into whosesoever hands they come, and that section 965 makes defendant liable only in the event it settles before judgment. It is true that part of section 965' expressly making defendant liable is found in the last seven lines of said section and deals only with a defendant who settles before judgment. But just before that, this same section, as well as section 964, says the lien cannot be affected by any settlement either before or after judgment. If a lien is created which cannot be affected, it would seem that the general law would make the defendant liable if it paid said judgment without taking care of such lien. In such case, the defendant’s liability' would de
There is a further point made by defendant in this connection’ and that is that plaintiff should have proceeded in the Allen case by motion for a rule on Robertson and Yeater to show cause why they should not pay the amount of plaintiff’s lien. This really is but a
The point that plaintiff is not entitled to recover because there is nothing in the agreed statement of facts to show either that Robertson and Yeater are not still holding the proceeds of the judgment in their hands ready to pay plaintiff’s claim, or to show that they are insolvent, cannot avail defendant. As stated before, liability in such case does not depend upon the insolvency of a client or of anyone else to whom the proceeds of a judgment are paid. The statute does not say the attorney of an insolvent client shall have a lien. Consequently, insolvency of the one receiving payment in disregard of the lien is not a condition precedent to, or a constituent element of, plaintiff’s right to sue. Plaintiff could have sued Miss Allen, the client, or could have looked to the fund while it was in Robertson’s and Yeater’s hands if she had elected to do so. She has the right, however, not to pursue either of these two remedies but can go after defendant in an independent proceeding, and has elected to do so. In such case, it is not incumbent on plaintiff to show, as a part of her case, that it is impossible to get the money out of Miss Allen or Robertson and Yeater. Hence, as heretofore stated, the solvency or insolvency of these persons is not material. If such matters can be said to contain a defensive element, then it was incumbent on defendant to show that Robertson and Yeater still have the funds in their hands (a thing not likely since the presumption is they performed their duty to their client Miss Allen by at once paying the •judgment over to her less their fee), or if Miss Allen has received it, as is quite likely, that she is financially responsible. This was not done, and even if it had any bearing on the case, plaintiff was not required to show it.
It follows from what has been said that the judgment should be reversed and remanded with directions
Rehearing
ON MOTION FOR REHEARING.
In the motion for rehearing it is urged that payment of the judgment to Robertson and Yeater, two of plaintiff’s counsel, must protect defendant because it was the payment of a “final judgment paid to the only officers of the court authorized to receive the amount of money due on the judgment.” And the question is asked, if the payment of the judgment to a portion only of plaintiff’s counsel will not protect, what is one to do against whom a final judgment has been rendered?
The trouble with this contention lies in the assumption of the minor premise that Robertson and Yeater are “the only officers of the court authorized to receive the amount of money due on the judgment.” If a defendant wishes to avoid all responsibility in the matter it can do so by placing the money in custodia legis, that is, by paying it into court, or depositing it with the clerk, throwing upon the law and the court the responsibility of saying where and to whom it shall go. A plaintiff’s counsel are authorized to receive a judgment, but so is the plaintiff. If the law gives a lien upon the cause of action which attaches to a judgment when rendered, and that lien is in favor of every attorney who by authority renders service of which the defendant has notice, then it is not seen how payment of that judgment to one not authorized to accept and release that lien can defeat it. In the case at bar Miss Allen’s remaining counsel Robertson & Yeater were authorized to accept payment of the judgment so far as Miss Allen’s and their own rights were concerned, but they were not authorized to accept payment of and release Lawson’s lien.
