268 S.W. 383 | Mo. Ct. App. | 1924
Lead Opinion
The cause was then tried before the court on the issues joined between the defendants by their pleadings aforesaid. The court gave judgment in favor of the defendant Ottilie Cummins and against all of the other defendants, and ordered the said fund of three thousand dollars to be paid to the said Ottilie Cummins. From this judgment the defendant C.J. Anderson appeals.
Appellant C.J. Anderson testified that the policy in question came to his possession as attorney for the respondent Ottilie Cummins; that he rendered services for her in an effort to procure an adjustment and settlement of the amount due under the policy; that the services so rendered were of the reasonable value of $650; that he also rendered services for her in adjusting a damage claim against the United Railways Company for the death of her husband; that the services so rendered were of the value of $100; that he had been paid on account of said services $50; that the balance of $700 remained unpaid; that he prepared proofs of loss as required by the policy and also prepared a petition with a view to filing suit for the amount due under the policy; that before the suit was filed respondent discharged him as her attorney and demanded that he deliver to her the policy; that he refused to deliver the policy to her, and retained it in his possession at the time of the trial.
Appellant insists that he has a lien on the policy and on the fund deposited in court as the proceeds of the policy for the amount due him for his services rendered respondent as her attorney. He concedes, as he must, *408
that no lien exists in his favor under the statute. [Sections 690 and 691, Revised Statutes 1919.] He insists, however, that he is entitled to a lien at common law. Two classes of attorneys' liens obtained at common law, viz., (1) a special or charging lien on the judgment procured by the attorney in favor of his client, for his services rendered in procuring it, and (2) a general, possessory, or retaining lien, attaching to papers, books, documents, securities, and money, coming to the attorney in the course of his professional employment. That the appellant has no special or charging lien is beyond controversy. [Frissell v. Haile,
Appellant seems to predicate a right to a lien on the fund upon what was said by our Supreme Court in Wait v. Atchison, Topeka
Santa Fe Ry. Co.,
Appellant also relies upon Schubert v. Herzberg,
The appellant further contends that, though he has no lien on the fund deposited in court or other interest therein, the court should nevertheless have given a personal judgment in his favor against the respondent for the amount shown to be due him for his attorney fees. In support of this contention appellant invokes the familiar rule that, when a court of equity has acquired jurisdiction of a cause for one purpose, it will proceed to do complete justice between the parties and determine all matters in issue even if this involves the adjudication of an issue which would otherwise be cognizable at law only, or, as otherwise stated, when a court of equity once acquires jurisdiction of a cause, it will not release its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate, and complete justice between the parties. The res
involved in this case is the fund deposited in court for the contentions of the rival claimants. The controversy concerns this fund. The rival claimants were brought into court that their respective claims to the fund might be litigated and determined. The respondent claimed the entire fund because she as beneficiary in the policy was entitled to receive it. The appellant claimed a lien on the fund to the amount of seven hundred dollars for his services as respondent's attorney, and sought to have payment thereof *410
made to him out of the fund. The court adjudged that the appellant had no lien on the fund and no interest in it, and adjudged the respondent entitled to the entire fund and ordered it paid over to her. The court thus exhausted its power and jurisdiction over the cause before it as a court of equity. The chancellor, having determined that the appellant was not entitled to any equitable relief, could not thereupon proceed to adjudicate a purely legal issue and give a personal judgment in his favor. A litigant may not by merely asserting an unfounded claim or right throw a cause into equity, and, when it turns out upon the trial that he is not entitled to any equitable relief, insist that the chancellor grant him the legal relief the evidence shows him entitled to, and thus deprive the adverse party of the right to have such legal issue tried by a jury. [Miller v. St. Louis Kansas City Ry. Co.,
The Commissioner recommends that the judgment of the circuit court be affirmed.
Addendum
The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. Allen, P.J., and Becker and Daues, JJ., concur.
Addendum
Appellant also cites and relies on cases in other jurisdictions wherein the common law charging lien was invoked and enforced. These cases have no application in this jurisdiction where the common law charging lien is not recognized.
The Commissioner recommends that the appellant's motion for rehearing be overruled.
Addendum
The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. Appellant's motion for rehearing is accordingly overruled. Daues, P.J., and Becker and Nipper, JJ., concur. *412