Abbott v. Marion Mining Company

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

164 S.W. 563

255 Mo. 378

OSCAR ABBOTT v. MARION MINING COMPANY, Appellant

Supreme Court of Missouri, First Division

March 3, 1914

Appeal from Barton Circuit Court. -- Hon. B. G. Thurman, Judge.

Affirmed.

Thomas & Hackney for appellant.

The court erred in refusing the defendant's demurrer to the evidence. (a) The Attorney's Lien Act of February 25 1901 (Laws 1901, p. 46), contains no emergency clause and inasmuch as the Legislature at that session adjourned March 18, 1901, the act took effect ninety days thereafter, to-wit June 16, 1901. (b) The contract of employment between plaintiff and his attorney, Redburn, having been made previous to the taking effect of the Attorney's Lien Act and the suit having been filed May 17, 1901, one month prior to the taking effect of the act, the commencement of this suit did not have the effect of conferring any lien on the plaintiff's attorney and the first section of the Lien Act could in no sense apply to this case. The act cannot be given a retrospective or retroactive application inasmuch as this is prohibited by the Constitution. Sec. 15, art. 11 Constitution; Young v. Renshaw, 102 Mo.App. 187; Northrup v. Hayward, 102 Minn. 307. It is a well-settled rule in this State that acts of the Legislature must be given prospective and not retrospective operation; otherwise, they are unconstitutional by the express terms of the Constitution which prohibits the passage by the Legislature of any retroactive law. Walter v. Fudge, 63 Mo.App. 56; Hough v. Woodman, 85 Mo.App. 102; Reed v. Swan, 113 Mo. 100.

John B. Cole, A. C. Burnett, E. L. Moore and H. W. Timmonds for respondent.

(1) Under the Attorney's Lien Act it is not necessary that the suit or cause of action be reduced to a verdict or judgment; the attorney's lien is upon his client's cause of action, from the commencement of the suit thereon, and if afterwards, the cause of action becomes merged into something else, the lien attaches to the thing into which the cause of action is merged. Taylor v. Transit Co., 198 Mo. 725. (2) The act is remedial and will be liberally construed. Wait v. Railroad, 204 Mo. 501; Conkling v. Austin, 111 Mo.App. 301; Hansen v. Railroad, 173 N.Y. 492; Wolf v. Railroad, 155 Mo.App. 143. (3) Where a percentage contract exists and a judgment has been obtained, but not become a finality, a settlement and release is made, ignoring the plaintiff's attorney's rights, the attorney's lien is not destroyed, and the amount of the lien is controlled by the settlement. Wait v. Railroad, 204 Mo. 502; Curtis v. Railroad, 118 Mo.App. 341; Railroad v. O'Connor, 153 Mo.App. 139; Hurr v. Railroad, 141 Mo.App. 222. (4) Prior to the enactment of the Attorney's Lien Act, an attorney had no lien for his services on a judgment obtained by him for his client. Young v. Renshaw, 102 Mo.App. 184; Curtis v. Railroad, 118 Mo.App. 348; Conkling v. Austin, 111 Mo.App. 292. (5) To apply the act to the case at bar does not give that act a retroactive application or retrospective operation. While the attorney's contract and the commencement of the suit antedate the day this act became effective, the judgment in this case and the settlement both are subsequent to that time and this act applies. (a) In the case of Taylor v. Railroad, 207 Mo. 495, the contract and suit both antedated the day this act went into effect, but notice was served upon the defendant and settlement was made after the act became effective and this court applied the Attorney's Lien Act, held that section one of that Act fully authorized a recovery and affirmed a judgment in favor of the plaintiff's attorney. (b) In the case of Young v. Renshaw, 102 Mo.App. 173, the contract and judgment both antedated the date this act went into effect and was for that reason alone reversed. (6) The act does not give the attorney a new cause of action -- his cause of action for services existed at common law -- but gives a remedy for its enforcement and an act relating only to the remedy of an existing cause of action is not retrospective. Gibson v. Railroad, 225 Mo. 473; Clark v. Railroad, 219 Mo. 531; State ex rel. v. Taylor, 224 Mo. 393; Haarstick v. Gabriel, 200 Mo. 237; O'Bryan v. Allen, 108 Mo. 227; Porter v. Mariner, 50 Mo. 364. (7) The Attorney's Lien Act is a new remedial statute. Caldwell v. Ryan, 210 Mo. 41.

OPINION

BROWN C.

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, Missouri. 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 three thousand dollars. 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 nine hundred and fifty dollars 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 proceeded to trial for the benefit of the attorneys interested, who intervened for that purpose, resulting in a verdict and judgment for four hundred and seventy-five dollars 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 Attorneys' 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.

OPINION.

The only questions raised by the appellant relate to the application of the Attorneys' 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, section 15, of the State Constitution. It contends that while this court, in Taylor v. Railroad, 207 Mo. 495, 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 which one who performs valuable services for another may have compensation for his work out of that which it has contributed to produce. In such cases the courts do not torture the language of an act to defeat its evident purpose. In this case the language is plain. The lien which it creates attaches itself to the...