*1 COURT OF MISSOURI. SUPREME Ry. v. Met. Gillham Co. MILLS;
CLAUDE V. M. Peti GILLHAM, CORSON Attorney’s Fee, tioner METROPOLITAN STREET R. COMPANY; RAILWAY J. DUNHAM Appellants. and FORD HARVEY, S. Receivers, April 10, One, Division 1920. Right Remedy: ATTORNEY’S LIEN: and
1. The Attor- Procedure. ney’s attorney giving Lien Statute in a lien on client’s his action, being right constitutional, cause of created a that did not law, provide remedy, exist at common but failed to and there- right may perish that the fore courts devise for its en- procedure general forcement modes of conformable to those rules system jurisprudence security established our for the private rights, pursued depending the mode to somewhat on particular the facts of each case. Equity. 2. -: — : -: Action at Law or Suit in The statute- gives percentage basis, attorney, on a a lien on the client, cause of action of his who has nevertheless the absolute faith, good regardless attorney’s it, wishes; to settle collusion, if the and settlement made without fraud or thereby wiped out, cause of action if and lien independent disregarded, has been he is remitted to an against defendant, independent which be an action at law deprived, or, pos- for the value of the of which he has been elect, equity sibly, he so a suit in lien. foreclose his . Notwithstanding -: Action 3. at Law: Due Process. the attor- ney, according proceeded contract, in order to recover his fee entitling filing his settled, motion which had been been, notwithstanding it as that case had and the motion asked entry the court to set aside the of dismissal and reinstate the case open up purpose on the docket and case “for of this mo- yet tion,’: alleged every if the motion fact in- essential for an dependent defendant in an action at law prayed for enforcement bis lien and the value thereof, voluntarily appeared and and defendant answered that plaintiff’s charged case, he never con- spiracy defendant, him between defraud replied by general denial, was submitted matter court, argument proceeding had, evidence was received and usages conformity governing was in rules ' Vol. v. Met. St. law, law,
trial of due since civil actions at lawsuit, purpose real of the motion was revive dead statutory monetary judgment to establish a for the value *2 lien. existence, Quantum -:'-: The character
4. Meruit. percentage identity attorney’s on a of an services rendered for employment; are from his contract of and when basis derived wrongfully discharged, is his is cause of action or the settled depends consent, upon client to recover an without his his being pleadings contract, establishment of the and the suit express quantum cannot recover as on one on contract he an rendered, judgment meruit his and a for value of for services services, im- rendered an as if under reasonable value of contract, responsive plied is on an action based express contract. Prayer. Entitling -: -: Suit: General The 5. disregard remedy by- client, in a settlement defendant with for his independent employment, suit his lien and contract of lien, defendant, statutory for the value filing proper motion is not undertake to establish law, prayer And, settled. for an action inappropriate anomalous, relief is but not substantive. Seehorn, T. Appeal from Jackson Circuit Court. —Eon. J. Judge. and remanded. Reversed J. and Roscoe P. Higgins Conkling
Richard ap- pellants. judgment aside the setting court erred
(1) The This (a) 17, entered record October 17, of October judgment after the final at law, and set aside authority to<- the court was 1917, the amendment permitting the purpose judgment evidence, of further introduction motion, The petitioner. for the a new judgment to enter then in a final judgment 17, 1917, October judgment peti to sustain authority only The court had law case. let the trial, tioner’s motion for new of these neither October stand. court did 120 SUPREME COURT OF MISSOURI. Ry. v. things. two Akins v. 109 Hicks, ;95 State ex Mio. rel. v. Mo. Horton, 671; Mo. Abeles, Patrick v. 184; ex State rel. v. Walker’s Evans, 310; 176 Mo. Admrs. v. Mo. Pao. 367; 25 Mo-. Shell v. Rail Walker, App-. road, 132 433; Mo. 528; 162 Mo-. Railroad, Miller v. (h) Wait v. Respondent’s Co., 491; 204 Mo. R. sec. 2022-. 190-9, S. testimony conclusively jury
own shows, approved, found, trial court stil trial court and the approves, respondent that the abandoned the cause By respondent estopped action. his own actions from Mfg. Sharpies asserting claiming any lien. v.Co. A,pp. 98 Mo. 207; v. Chinn, Miller Mineral 212; 203 S-.W. App-. v. Water C'o. Fishman, 211; 127 Mo. v. Chouteau Seligman Rogers, Iron 94 Mo. Works, App. 462; 642; Palais du Costume Co. 114 Mo. Beach, *3 King, App. (2) Blanton v. 73 Mo. 148. The court erred permitting respondent, judgment in after after trial, and adding appellants, for these to amend his motion relief, prayer (a) for There no or was warrant authority in law such that for amendment at time. See. (h) 1851, R. S. 1909. The amendment amounted to departure original up from the cause of action declared Warren, 449; on. v. Scoville Mo. P'ruitt Giassner, 79 v. App. 515; 71 Mo. 84; Weissenfals v. Mo-. Cable, 208 Dilley, Wright, St. L. v. 501; Mo. Carter Mo. 210 v. 167 Lumpldn '(3) 564; Collier, v. 69 Mo-. 170'. The erred, permitting any in evidence of the value serv upon, respondent, respondent ices because declared attorney’s upon contract, motion and the was founded upon quantum Recovery lien statute. cannot be had Wright, App. 551; meruit. White v. Mo. Fox 16! v. Phll Co., App-. Bridwell, 127; man v. Mo. 10 Mo. Houck 28 App. Stanley App. Mo,. 648; Whitlow, 461; v. 181 Shoe App. (4) Johnson, maker v. Mo. 200 2091 The court jurisdiction. money judgment en no There no against appellants original tered. in the cause. The final judgment original judgment in the dis cause was original judgment money There was missal. no in the proceeding, which the 'cause to lien, established in this 121 282 1919. Vol. Ry. Met. Gillham v. lien, proceeding, to establish attach itself. This
could pro independent not a have been should original ceeding Wait v. cause. motion in the 643; 198 Mo. Transit Co., 204 v. Co., 501; Mo. 0'’Connor Taylor (5) court erred 198 Mo.- The v. Transit Co., 1916, setting 17, in rendered October aside refusing petitioner in permitting motion, amend impaneled jury to' recall sworn permitting petitioner introduce October 16, 1917, ap thereby depriving new pellants further these evidence, property of their without due law,' violation Article of the Constitution of II, of Section v. v. Mo. inf. Yore, 44; Missouri. State ex Jones Shepherd, Mo. 205'. respondent. <3 Davis, Nou-rse Bell
Hutton,
setting
judg-
(1)
aside its
not err
The court did
being the
motion,
on its own
17th,
of'October
judgment was entered. Modern
same term which the
Angle,
Buck,
Buck
v.
v.
Woodmen
(2)
allowing
liens
Gillham v. Met. St. C. This is an At RAGLAND, action based on the torney’s desig Lien Statute. M. 0. hereinafter Gillham, plaintiff, years nated the is, and for been, number has of City actively engaged member of the Kansas Bar, practice prior February law. of time one 8,1916, Some personal through injury negligence Mills sustained passenger while a defendants on their cars. On employed plaintiff last attorney date he named as his prosecute récovery commence and his suit for damages. By employment agreed the contract plaintiff plaintiff between should Mills twenty judgement, per any settlement cent of services compromise disposing or obtained Mills effected, employment, plaintiff cause of action. Pursuant to his prepared February and, filed with the .1916, on Clerk petition County, Jackson Circuit Court for which an action was commencéd de Mills these recovery damages fendants for of $30,000 as sus negligent tained him on account Later their acts. plaintiff appeared plaintiff cause for Mills, hearings attorney, as his at the therein, on defendants’ petition demurrer to the their motion make depo talcing same as well definte as at certain, part spent sitions on the defendants. He also consider preparation able time in the trial. There diligence suggestion of a lack either or skill no. paintiff’s apparently, out But, conduct the case. some operating side influence on the mind Mills led him to grievous he believe that had made mistake in not em employed thereupon ploying a certain other He suggestion Mills wrote other, the latter’s he in letter, effect that at stated plaintiff (at hospital) time he talked to with ref employing erence to him he, not in a condition Mills, was mentally any plain make a contract, event merely ¡filie tiff and that no must take further re action, other counsel had been try tained to the case. Plaintiff construed this letter lawyer mean the Mills secured another to conduct *5 1919.' Vol.
Gillham v. terminating his not as in trial the cause court and the employement. accept to notice service continued He other- depositions opposing by counsel served take fact This charge case. in active continued wise July 1916, he 81, on coming of Mills, the attention directing him peremptorily plaintiff letter, a wrote threatening take meddling case with the cease do did he association, the local bar before matter been he had a to realization then awoke so. Plaintiff attorney nothing further replaced by and did another attorney Mills,through last Later the case. knowledge plaintiff, effected him, and without sum of he which received
a of his case, settlement stipulation was filed $5500, and on November 24,1916, agreed that the same which was cause should Judgment entered cost. dismissed defendant’s days stipulation. Just few with the accordance be: Mills’s then fore the settlement was effected, charge plaintiff offering latter of his case wrote $50 compensation in full services therein. Plaintiff replying, was withdrawn offer and the settle- proceeded consummation further ef- anyone part se- fort on the connected case to with the plaintiff’s on action, a release of the cause of cure if he had one.
On the Clerk December filed with County paper, the Circuit Court for Jackson caption motion, which, its denominated prayer, purported Mills, to be in Claude V. plaintiff, Metropolitan Railway v. The R. J. Street Harvey, Dunham and Ford In Receivers, defendants. styled a'“petitioner.” paper plaintiff this himself But proper whatever be its al characterization, leged pleading prior February this one 8,1916, injuries having Claude theretofore Mills, V. sustained negligence through passenger while a defendants subsisting having on their cars, of action damages employed plain injuries, for such that date attorney-at-law (“your prose petitioner”) tiff recovery agreed a suit for thereof; cute that it SUPREME COURT OP MISSOURI. *6 Ry.
Gillham v. Met. Co. St. plaintiff between and said Mills that for bis services plaintiff twenty per that bebalf what- should cent of ever amount was on the cause whether realized of action, by compromise judgment, plaintiff, that settlement; pursuant employment, Mills, to his filed thereby commencing suit latter’s cause of against railway company that, and its receivers; engaged preliminary while he was in. matters trial to a plaintiff knowledge of the cause, ’s without or con- Mills, agree- sent, settled the case for and entered into an $5600 ment therein with defendants for dismissal of the cause, accordingly pay- which was done; that the defendants ing over to Mills in full $5500 settlement of the plaintiff’s knowledge deprived action, without or consent, plaintiff twenty per of his fee cent thereof “and upon said cause allowed statutes ” prayer Missouri. is as follows: your petitioner
“Now, comes therefore, and moves entry set aside the of dismissal entered day open this cause on the 24th November,1916, upon and reinstate the docket of court, said cause said purposes for the of this motion, for reasons hereinbe your petitioner grant judgment fore against and to stated, twenty per defendants for cent of said amount paid plaintiff by as defendants for settlement and com promise cause, of this or eleven hundred to dollars, gether per with interest at six cent from November 3916.” upon
The record does not disclose the fil whether, paper, ing any of this a summons issued or whether upon any. notice thereof was served In defendants. appeared they (November event, 1916) at same term Term, the court and filed answer in which it al leged that never Mills, any that was never time Mills’s they case which settled with Mills. It was further aver grant plaintiff prayed red in the that to answer the relief deprive him prop be to would of their defendants erty due law violation both Yol.
Gillham v. Met. deprive de State and Federal constitutions, would byi guaranteed right by jury fendants of of trial Sep At the Missouri. Constitution of State filed tember of the court the defendants Term, any they pleading In this omitted amended answer. deprive proceeding them of averment would alleg’ed contrary jury. they On trial charg equitable an, and, after one, the action was having into ing others entered Gillham and Mills, with conspiracy money them, from more asked to extort given judg plaintiff, Gillham, in the event that, awarded a them, *7 respects the Mills. In other amount same the Plain was to one filed. amended similar first answer reply. general by way of denial tiff filed trial October'29th, course came The cause due apparently September Acting during term, suggestion in amended answer, defendants’ on the party the record protest far as so either from proceeded of with the trial the court' discloses, equity. though However, a suit were cause as spe- opinion jury on certain concluded take jury and a was questions involved therein' cific fact impaneled. pro accordingly heard and con was Evidence plaintiff length had been of whether issues plaintiff, by employed by his acts Mills and whether receipt letters, aban- after Mills’s and conduct employ- relinquished his claim doned Special framed sub- were therein. issues jury. Among col- others, or more' less mitted plain- they one, this found that Mills lateral to contingent question bring for a fee suit in tiff by judgment twenty per realized cent whatever specific question was also submitted This- settlement. to them: petitioner, by his acts, abandon Gillham,
“Did the act therein? action and cease to up give “By meant to ‘abandon,’ herein, as used you absolutely. connection, In this are instruct- thing SUPREME COURT OP MISSOURI. Gillham v. Met. St. directly,
ed proved that abandonment bnt need be inferred acts omission which of commission or point necessarily actual abandonment.” jury To the. The court answered, “Yes.” approved adopted findings jury of the and en- judgment tered thereon for defendants. during both term counsel for
Later the same when parties present, announced that, were the court judg “petitioner” set aside it, desired would the-“petitioner” permit to introduce evidence ment and plaintiff his services. reasonable value of the offer. that he avail himself indicated would Thereupon, own aside the its the court set suggestion amended its further motion. At adding prayer motion or amend an obtained leave their relief. Defendants The added matter did swer, which addenda. protest against principally conver vehement express from one on contract of the cause of action sion averring quantum meruit, court’s one on only permitting the done was not same to be prop deprived departure, defendants of their deprived them, law and erty without due jury to a trial. After constitutional their *8 filing court offered answer, second amended the of this jury try all the issues. The defend to call another calling jury.; they objected another claimed ants they the one that rendered that advisory wanted the recalled discharged. This court
verdict and been the hearing After additional evidence to do. refused plaintiff’s services, of the court value the reasonable adopted findings jury, approved again as (cid:127) rendered-judg damages plaintiff’s $750 sessed for his favor and defendants in that sum. appeal. judgment defendants From that grounds appellants principal rely on which The (1) proceeding that are: a reversal deprived they property are of their therein process in violation of law of their- due consti- 12FT Yol. y. Gillliam rights', contention in this their and included
tutional is jury right trial, that to a were denied the (2) judgment, pleadings under on that by the unauthorized. found court, facts Attorney’s constitutionality Lien I. The longer grounds presented, on no itself, Statute things open question, passed but has into the realm of [Whitecotton adjudged. Railroad, 250 624, 628.] v. Mo. Procedure therefore, The only question [**] with ± reference that [*] may j be infringement considered, [*] lights respect appellants’ constitutional con procedure tended for the mode of -them, whether require up by the to the followed trial measured ‘ ‘ ’’’ of law. Plaintiff his motion ments due allege on notice does not service provided by Statutes defendant- as Section Revised right recovery, any, against de so that his proceeding exclusively rests this Section fendants'in on hereafter course 964, and whatever said spe respect opinion will to the statute this with statute last named section. reference to the cific attorney cause of client’s giving lien on right at common did not exist created action provide though creating right, it fails new law, remedy. [Young 173.] Renshaw, 102 Mo. might circumstances, Under such remedy, courts have been perish want of for. pro devising modes of for its enforcement assiduous general rules established to “those conformable cedure _f prL security jurisprudence system or the in our 491.] The rights.” [Wait Railroad, vate depends on the procedure somewhat sanctioned kind of particular If the cause case. of- each facts merged into has been a lien has which a enforcing proceedings judgment, certain is settled or com if the cause allowable; are *9 judgment, are others certain promised 'followed- before by the settlement was effected case instant In judgment, we are concerned, there- before client 128 SUPBEME COURT OF MISSOURI.
Gillliam v. Met. involving" proper procedure as to fore, cases different situation. precedents holding a settle
There that, are where cheating purpose eollusively made for the is disregard may con he settlement attorney, prosecution client’s action in the tinue the of the cause of permit, extent of his if the recover to the name, and, facts In on the client’s lien. such case suit continues proceed summary action; a mere cause ing ab assess fees. In motion to therein made collusion, however, sence of fraud settlement or being extinguishes action, and, the cause the client subject prosecution. wiped This it ceases be the out, property action is the the cause is so because attorney, he has absolute client and not the good adjustment faith, init,of or to make such settlement attorney. regardless of his the wishes best thinks of- as he App. Railway, Railroad, Wait v. Mo. [Curtis v. subject right, if on supra.] and, to this The lien is (cid:127) liquidated by percentage the exercise thereof. basis, is by the his cause client, made ail honest settlement After attorney, thereby being if determined, the action disregarded, necessity remitted to lien been has [Yonge independent defendants. action independent 246.] S'uch 235, 109 Mo. Transit may the lien for the be one at law value of corresponding law common deforced, he is which (Taylor trespass v. Transit Co., the case action of 730); possibly, he elected, so 715, equity lien. bring foreclose his a suit instead l. N. Y. c. Railroad, In Fischer-Hanson very construing leading ours, a statute similar to (cid:127) it is said: upon a claim or a follows lien “A there^ claim, settlement of fund created exist; agreed -amount upon to the It attaches ceases agreement is instant upon in settlement. pays over to client-with- defendant made, and if attorney, for the violates the providing out *10 Vol. 282 y. Ry. Co. Met.
GiUliam St. consequences. rights of the the latter must stand which upon the sum thinkWe that the had a lien extinguish agreed cause pay the the defendant it saythat permit it to and that law will action, the satisfy nothing it. The has its hands leaped by adjustment, from extin- the affected the but agreed upon in guished amount of action to the settlement. provided by aof remedy by means
“The Code a court cumulative, is not brut exclusive, power always equity enforce has ascertain and plain- liens. We have endeavored to establish action to tiff’s lien was tranferred from the cause of by fund into claim was which the converted principles parties, within familiar and hence equity power in an ac- that lien has enforce brought purpose. Actions establish tion for that equity among familiar to liens most enforce are those granted ultimately jurisprudence. is Even relief pos- money judgment; will be in the form of still that equitable only through jurisdiction in sible exercise A determining ascertaining amount. its the lien and un- money then as foreclosure follow, necessary already subject been when of the lien has ’’ money. converted into pointed
Having preliminarily the nature out its and the remedies conferred the statute courts, sanctioned enforcement that been a consideration of essential we come to nature proceeding in the instant whether case—of legal proceedings according those it was “a course principles our have been established rules protection pri jurisprudence for the and enforcement of designated rights.” In record as vate amotion fees pf for the assessment of ‘‘ plaintiff, Metropolitan Mills, v. The Claude V. Street Railway Harvey, Dunham Receivers, R. and Ford J. ’’ nomenclature, truly But such does not char- defendants. (cid:127) SUPREME COURT OP MISSOURI.
G-illham v. pleading entitled acterize it. The filed Gillham is first against though in receivers, ease Mills alleges every in fact essential for the- statement dependent ac defendants cause of prays for his lien. It tion law for deforcement of judgment against for the thereof. defendants value ap voluntarily notice, defendants waived the service peared denies that and answered. The answer repre employed by any he at time was ever Mills *11 controversy between in sented as his Mills alleges conspiracy be It the defendants. a Mills and this tween Mills defendants. To Gillham defraud reply, generally allega denying answer its Gillham filed joined trial tion. the issues thus was On had, pro and counsel con, evidence was received were heard duly argument, court in the cause was to the submitted conformity judgment rendered —all in usages trial in the actions rules observed civil pleading prayer in in Gillham’s entry this State. The first dismissal asked the set aside against open up and and to case of Mills receivers purposes that cause on docket “for reinstate ’’ suggested neces motion, this reason was but no purpose sity propriety reinstating cause, no thereby, re could in fact have been subserved quest properly ignored, by both the court and judgment parties. judgment money rendered was. nothing-more. the defendants and The court did attempt power not to do what it had no to do Gillham’s on no motion, to'-wit, the dead lawsuit. is resurrect There appellants’ judgment substance contention that de prives property their' them of without due jury trial. law, unless it were denied is because right they unquestionably [Sprague But waived. this City Carroll, Kansas 188 S. W. 249 Woerishoeffer, 1.]Mo.
(cid:127) Appellants’ judgment II. next insistence is that the responsive express pleadings, that, is Yol.
Gillham v. quan pleaded recovery contract is gave judgment tum meruit. The court for defend first superin evidently ants. Such finding issue duced affirmative of this Merutt.m petitioner, of fact: “Did abandon Gillham, abandon, the cause of action and Bv cease act therein? up absolutely.” thing give used herein meant implied finding, It could ab from this considered stractly, voluntarily en duties Gillham forsook the joined upon him with contract Mills event, latter’s consent. In.such he would be entitled recover [Blan to. even for the service he render. did King, ton v. But from court’s 148.] subsequent action it is clear that not find did Gillham had abandoned his contract this sense. would be Indeed, difficult such a find reconcile proof. ing with the facts contradiction, Without shows that the evidence Gillham instituted the suit prosecution proceeding with its in the usual and was way stopped Mills’s letter. be until he was On discharged, option ing summarily liad the thus liquidated waiting until the of action was .cause *12 suing then or settlement and for his fee accord (Reynolds ing v. the contract Clark Mo. 645), Kersey 77 Mo. he could treat Garton, the con for the reasonable and sue value of tract rescinded 429). (Dempsey App. v. Dorrance, 151 Mo. his services quite not what have it is obvious Gillham could While discharged protest by way when him and of Mills done Bar Association did him with the if he threatened interfering case, in the the trial court must cease . . . ac omission” “acts of Gillham that found discharge, thereby the be quiesced contract in that as en a result became rescinded, came implied contract, to recover the for reason^ on an titled, actually he rendered. the services had The able value definitely in this State that in an written been law has recovery express, contract cannot an on [Shoemaker meruit. quantum as on Johnson, strictly cited.] and cases While this suit, SUPREME COURT OF MISSOURI.
Gillham v. Met. St. damages speaking, is to recover for the deforcement of requiring for lien, same reasons proof support allegations pleading and the granted relief to conform on obtain as suits right thereto contract. It is true that the lien is the mere proceeds impressed have the the cause with payment compensation provided of the for depriving plain- wrong contract, and it is the involved in gravamen tiff of this action, is the of the identity existence, de- character are of the lien rived from the contract. con- lien, To establish the giving specifically pleaded tract it birth must be proved, technically so that this while kind, actions'of respects. on 'As contract, are in certain such essential attorney there can be no in favor there lien unless be contract him client, debt due from the a suit attorney against settling the client defendants for with disregard lien, of his claimed the defendants are en- grounds titled to defend on the that the client could same alleged If, he sued fees. were alleged they deny con- existence of therefore, employment pleaded, consequently tract of exis- alleged joined tence on the issue thus thereof, are no contract or lien or contract, lien, no no rpeet upon proof any contract more other called (and lien) than than the the one averred this would be the defendant. In client himself were express upon basis contract was declared as the prayer lien. at the relief, added change suggestion, court’s did not the character either pleading judgment being for or the action. The implied the value the lien of an re- contract, effects a a, covery pleaded, action not for that have to reason will be reversed. *13 pointed remedy only heretofore, out,
III. As proceeding essentially actipn, although This such plaintiff, biy to the on the available facts disclosed independnt record, was the defendants. 1919. Yol. Ry. Co.
Adair v. K. C. Terminal by filing disguise plaintiff fit to has seen petition an anomolons alien title and with an Prayerand that ac prayer. canse on remand To now' sacrifice, plain The substance form. would count, by properly en may, tiff amend his advised, if so por by striking titling extraneous the cause and out .the prayer. tion remanded and the is reversed proceeded inwith accordance with the views herein
to be expressed. Small, Broivn and consur. GG., opinion foregoing Rag-
PER CURIAM:—The opinion adopted All the of the court. as the C., land, judges except absent. Woodson, concur J., Appellant, CITY v. KANSAS ADAIR, C. HERSCHEL COMPANY; O’HA H. P. RAILWAY TERMINAL & LAKE, O’HAGAN Partners, et al., and GAN Corporation. April One,
Division 1920. Railway Company Employee of and AND MASTER SERVANT: partners Injuries. had Personal Where Excavation: Its Contractor: railway company tunnel a steam to construct with a a contract station, power connecting and union house with its its pouring plaintiff excavation in the work labor-foreman inspectors railway present concrete, company and the performed seeing properly purpose that the contract competent gave laborers, directions who at times use of instructions, end, required to their conform any nothing tended in such interference which did bring plaintiff’s injury, con- defective about caused wise to until it hard- hold the the wooden walls to concrete struction of plain- ened, between there was no relation master servant company, him it is not liable to railroad tiff and the appliances supply injuries him with due to a failure to safe place a safe in which to work.