Argeropoulos v. Kansas City Rys. Co

Citation201 Mo. App. 287,212 S.W. 369
Decision Date17 February 1919
Docket NumberNo. 12884.,12884.
PartiesARGEROPOULOS v. KANSAS CITY RYS. CO.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by James Argeropoulos against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clyde Taylor and Roscoe P. Conkling, both of Kansas City, for appellant.

Kimbrell & O'Donnell, of Kansas City, for respondent.

On Appellant's Motion to Set Aside Submission and Dismiss Respondent's Cause of Action.

TRIMBLE, J.

The original cause of action involved in the appeal herein was tried in the circuit court of Jackson county, Mo., and a judgment was rendered in favor of the plaintiff, James Argeropoulos, on November 23, 1916. His attorneys were Kimbrell & O'Donnell, a firm composed of I. B. Kimbrell and Martin J. O'Donnell. A motion for new trial was filed by defendant November 27, 1916. At the January, 1917, term of said court, this motion was overruled, and an appeal allowed to the appellate court.

On April 3, 1918, the cause in our court was submitted on briefs. On May 20, 1918, an opinion by Bland, J., was handed down, reversing and remanding the cause. On May 29, 1918, respondent filed a motion for rehearing, which was sustained July 1, 1918. All of the foregoing was at the March, 1918, term of this court.

At the October term, and on October 16, 1918, the appeal was orally argued and submitted by appellant and respondent, acting through and by their attorneys.

After the opinion on the case under the last submission had been prepared and was ready for delivery at the sitting for announcement of opinions on January 6, 1919, but before it was announced, the appellant, on January 2, 1919, filed a document reading as follows:

"In the Kansas City Court of Appeals, at Kansas City, Missouri. March Term, 1918. Robert J. Dunham and Ford F. Harvey, Receivers of the Metropolitan Street Railway Company, Appellant, v. James Argeropoulos, Respondent. Stipulation of Dismissal. I, James Argeropoulos, the above-named respondent, hereby dismiss the above-entitled cause with prejudice against the institution of further proceedings herein, and personally authorize and direct any attorney at law to appear for me and have the order of dismissal made of record; and the above court is requested and directed to dismiss said cause with or without the appearance of an attorney; the unpaid costs to be paid by the above-named appellants.

"James Argeropoulos, Respondent. "Gust West."

It will be observed that this paper is not dated, but in the caption it gives the term of court in which it is apparently to be used as the "March Term, 1918."

On January 9, 1919, Kimbrell & O'Donnell, acting as attorneys for respondent, filed an application in his behalf to be permitted to withdraw the document purporting to be a dismissal, because it was not the act of respondent. And Martin J. O'Donnell, one of said firm of attorneys, acting for himself, and I. B. Kimbrell, the other member of said firm, acting as attorney for said O'Donnell, filed a motion to have the court strike out said document entitled "Stipulation for Dismissal," and to proceed to dispose of the case regardless of, and without giving effect to, such alleged dismissal. The grounds of this motion were that on November 25, 1916, Martin J. O'Donnell became the assignee for value of the judgment appealed from, which assignment was placed on the margin of the record of said judgment on said November 25, 1916; that appellant had notice of said assignment prior to the March, 1918, term of this court, at which term the so-called stipulation purports to have been executed; and that by virtue of said assignment all of the right, title, and interest of plaintiff and respondent, James Argeropoulos, in and to said judgment became vested in the said assignee, Martin J. O'Donnell.

On January 17, 1919, appellant filed a motion to set aside submission of the cause, and to enter an order dismissing plaintiff's cause of action. This motion is based on the hereinabove quoted "Stipulation for Dismissal" and upon facts alleged to be as follows: That on May 23, 1918, three days after the cause had been ordered reversed and remanded by the opinion handed down on May 20, plaintiff settled his cause of action, and accepted $315 in full settlement and discharge thereof; that at said time plaintiff executed the dismissal of his cause of action in this court hereinabove quoted, but "through inadvertence and oversight * * * the same was not filed in this court until recently."

Affidavits and other evidence were prepared and filed with this court bearing upon the respective sides of the controversy, and suggestions in support thereof, and the matter is now before us for consideration.

On the margin of the record of the judgment appears the following:

"For value received I hereby assign all my right and title to the within judgment to Martin J. O'Donnell. James Argeropoulos.

"Attest: _____, Clerk.

"In the Circuit Court of Jackson County, Missouri, at Kansas City, 1916. James Argeropoulos, Plaintiff, v. Ford F. Harvey, R. J. Dunham, Receivers of Metropolitan Street Railway Company, and Kansas City Railways Company, Defendants. No. 101283. Assignment of Judgment. On this 25th day of November, 1916, 1, James Argeropoulos, for value received, hereby assign all my right, title and interest in and to the judgment rendered in my behalf in division No. 2 of the above court on the 24th day of November, 1916, to Martin J.

                O'Donnell.          James Argeropoulos
                

"State of Missouri, County of Jackson—ss: "On this 25th day of November, 1916, before me personally appeared James Argeropoulos, to me personally known to be the person whose name is signed to and who is mentioned in the above instrument; and the said James Argeropoulos, having first read the same and being familiar with its contents, did acknowledge the same as his free act and deed.

"Pearl M. Craig, Notary Public. [Seal.]"

Appellant's evidence is to the effect that James Argeropoulos, the plaintiff and respondent in this cause, came to the office of appellant's legal department on May 23, 1918, with a companion by the name of Gust West; and there agreed to take, and did take, $315 in full settlement of his cause of action, and was paid that amount, and executed a release thereof, and signed the hereinabove quoted dismissal. Also that Argeropoulos came to Kansas City shortly before May 23, 1918, and, not being satisfied with the progress of his case, and wanting no further delay in getting some money in the matter, requested Gust West to get in touch with the legal department of the Street Railway Company and effect a settlement that the latter took said Argeropoulos, or accompanied him, to said department, where the case was settled and the money paid, and Argeropoulos left Kansas City that evening, May 23, 1918. Sworn copies of the release, voucher, and check executed in settlement of the case were filed; all of these are dated May 23, 1918.

Appellant, relying on sections 1979 and 1980, R. S. 1909, says that a plaintiff has the right at any time and at any stage of the proceedings to dismiss his cause of action, except in those instances where the defendant's rights would be prejudiced. The former section provides that a plaintiff in any court of record may dismiss his suit in vacation upon the payment of all costs therein; and the latter provides that a plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury or to the court sitting as a jury, or to the court, and not afterward. There is no question but that, in the absence of fraud in its various forms or unlawful consideration, settlements tending to avoid litigation are not contrary to public policy. Brandenburger v. Puller, 266 Mo. 534, 181 S. W. 1141. Indeed, they are looked upon with favor by the courts. It is also true that a nonsuit may be taken after reversal and remand for a new trial under a statute allowing a nonsuit at any time before trial, as the cause then stands for trial de novo. 14 Cyc. 406. But in the case at bar there was no reversal of the judgment nor remand of the cause, only an opinion to that effect, which never ripened into a judgment, but which was superseded by the sustention of a motion for rehearing and the argument and submission on such rehearing. The motion herein considered is a motion to dismiss the cause of action, not the appeal. But the cause of action has been merged in the judgment. Lewis v. St. Louis, etc., R. Co., 59 Mo. 495, 503, 21 Am. Rep. 385; Moorman v. Wood, 117 Ind. 144, 19 N. E. 739. The handing down of the opinion on May 20th did not affect the judgment below. That could only be affected by our judgment and the filing of a mandate based thereon. State ex rel. v. Broaddus, 234 Mo. 358, 137 S.W. 268.

If we give effect to the assignment of the judgment to O'Donnell, then he is the assignee thereof "for value." And whether the consideration therefor be for a pecuniary consideration or solely for the services rendered, yet, either is good, since under sections 964 and 965, R. S. 1909, the latter is a property right in the attorney, being the lien upon the plaintiff's cause of action which attaches to the judgment, and "cannot be affected by any settlement between the parties before or after judgment." Said statutes vest a property right in the attorney rendering the services in the case. Wait v. Atchison, etc., R. Co., 204 Mo. 491, 103 S. W. 60; O'Connor v. St. Louis Transit Co., 198 Mo. 622, 97 S. W. 150. 115 Am. St. Rep. 495, 8 Ann. Cas. 703; Taylor v. St. Louis Transit Co., 198 Mo. 715, 97 S. W. 155. Under such statutes giving an attorney a lien, it is held that he has a property right in the judgment or such interest therein as entitles him to oppose a motion to dismiss; and...

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