Abbott v. Marion Mining Co.

• Decision Date: 03 March 1914
• Citation: 255 Mo. 378,164 S.W. 563
• Parties: ABBOTT v. MARION MINING CO.
• Court: Missouri Supreme Court

164 S.W. 563

255 Mo. 378

ABBOTT v. MARION MINING CO.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

1. ATTORNEY AND CLIENT (§ 172)—STATUTES (§ 236)—CONSTRUCTION—REMEDIAL LAWS.

A remedial law such as the attorney's lien law should receive a liberal construction.

2. ATTORNEY AND CLIENT (§ 172)—CONSTITUTIONAL LAW (§§ 106, 191)—RETROSPECTIVE LAWS—"VESTED RIGHT."

The attorney's lien law (Rev. St. 1909, § 964), providing that, from the commencement of an action or the service of an answer containing a counterclaim, the attorney shall have a lien upon his client's cause of action or counterclaim, which attaches to a verdict or judgment in his client's favor, and the proceeds thereof in whosesoever hands they may come, and cannot be affected by any settlement between the parties, while applying to an action instituted before the act took effect, is not in violation of Const. art. 2, § 15, prohibiting laws which are retrospective in their operation, for the lien given to the attorney does not take away any vested right belonging either to the attorney's client or the opposite party.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Oscar Abbott against the Marion Mining Company, in which John B. Cole and others intervened as plaintiffs. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is an action for damages for personal injury alleged to have been suffered by plaintiff December 26, 1900, while working for defendant in its mine in Jasper county, Mo. The petition was filed in the Jasper circuit court, and summons sued out May 17, 1901. The venue was changed to Barton county, where the cause was tried September 10, 1901, resulting in a verdict and judgment for plaintiff for $3,000. Defendant appealed to the Kansas City Court of Appeals, and on December 17, 1902, the case was settled, without the consent of the plaintiff's attorneys, for $950 paid plaintiff, who gave a full receipt and release therefor. The judgment was afterwards reversed, and the cause remanded to the Barton circuit court, where it was proceeded to trial for the benefit of the attorneys interested, who intervened for that purpose, resulting in a verdict and judgment for $475 in their favor, from which this appeal is taken by defendant.

On April 6, 1901, the plaintiff made an agreement in writing with F. M. Redburn, an attorney at law, which was signed by both the parties, by which it was agreed between them that Redburn should bring and prosecute the suit to final determination, and that, if the cause should be tried, Mr. Redburn should receive for his services one-half the money realized. All the intervenors claim under this contract.

In its pleadings, instructions, and motion for a new trial, the appellant insisted upon the point that, in its application to this case, the attorney's lien act of February 25, 1901, is retrospective in its operation, and therefore in violation of section 15 of article 2 of the Constitution of the state.

Thomas & Hackney, of Carthage, for appellant. John B. Cole and A. C. Burnett, both of Joplin, and E. L. Moore and H. W. Timmonds, both of Lamar, for respondents.

BROWN, C. (after stating the facts as above).

The only questions raised by the appellant relate to the application of the attorney's lien act of February 25, 1901 (Laws 1901, p. 46), to this case. The contract under which the amount of the recovery was liquidated was made April 6, 1901; this suit was instituted May 17, 1901; and the act referred to, which first gave the attorney a lien upon the cause of action of his client, took effect June 16, 1901. Under these circumstances the appellant insists that to apply the provisions of the act in this case would be to give it retrospective operation, in violation of article 2, § 15, of the state Constitution. It contends that, while this court, in Taylor v. Railroad, 207 Mo. 495, 105 S. W. 740, a similar case, upheld in general terms the constitutionality of the same act, its retrospective operation, as applied to the facts there in issue, was neither pressed upon it by counsel, nor referred to in its opinion. This is true, and in view of the argument of counsel, as well as of the authority cited by them, it is due that we should briefly state the process by which we have arrived at our conclusion.

The law under which the respondents are asking to maintain this judgment, and to which we have already referred, is found in the Revised Statutes of 1909 as section 964, and provides that, "from the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client's favor, and the proceeds thereof in whosesoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment." The remedy pursued by the intervenors is not questioned. The law is plainly remedial in character, for it simply provides a remedy by...