Ashman v. Shecter
| Decision Date | 01 November 1950 |
| Docket Number | 2. |
| Citation | 76 A.2d 139,196 Md. 168 |
| Parties | ASHMAN v. SHECTER et al. |
| Court | Maryland Court of Appeals |
Louis S. Ashman, Baltimore (Ashman & Link, Baltimore, on the brief), for appellant. Harold Lewis and Reuben Shiling, both of Baltimore, for appellee.
Before MARBURY, C J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.
Louis S. Ashman, a member of the Baltimore bar, brought this suit under the Uniform Declaratory Judgments Act, Code Supp.1947, art. 31A § 1 et seq., to obtain a declaratory decree and an injunction in order to protect an alleged attorney's lien for legal services rendered for a former client, Mrs. Sally Shecter.
The original bill of complaint, filed in the Circuit Court No. 2 of Baltimore City on June 1, 1948, alleged that Mrs. Shecter engaged complainant in 1945 to represent her in her domestic disputes with her husband, Solomon K. Shecter, and that she agreed to pay him a minimum fee of $500. She promised that if the Court should not require her husband to pay at least that amount for complainant's services, she would pay the difference and as a guarantee of payment she induced her mother, Mrs Shirley Simon, to deposit the sum of $500 with him.
The bill alleged that complainant obtained a decree of partial divorce for Mrs. Shecter on January 22, 1946. The decree ordered her husband to pay alimony and support for the two children, and to pay complainant and Harry Singerman, her attorneys, a fee of $500. During the trial the Court cited Mrs. Shecter and her mother for contempt for assaulting Shecter's sister in the courtroom, and complainant defended them against that charge. He also appeared as their attorney in a suit for damages entered against them by Shecter's sister. After he won the divorce case for Mrs. Shecter, he filed various papers in Court to enforce her rights under the decree against her husband. When the husband's desertion continued more than eighteen months, Mrs. Shecter requested complainant to apply for an absolute divorce for her. The bill further alleged that she requested him to try to secure an agreement that Shecter would convey to her his interest in their home at 5807 Park Heights Avenue for a reasonable sum of money, and that she promised that upon acquisition of full title to the property, she would mortgage it and pay complainant's counsel fees. On March 11, 1948, complainant succeeded in getting the parties to sign such an agreement. The agreement provided that Shecter would relinquish his interest in the home if Mrs. Shecter would pay him $2,500. It further provided that Shecter would pay $500 out of the $2,500 to cover the costs of the divorce proceedings and a part of the fee allowed by the Court in 1946 to complainant and Mr. Singerman, Mrs. Shecter's attorneys.
The bill further alleged that the title was conveyed to complainant, as Mrs. Shecter's attorney, and Isidor Roman, as attorney for her husband, as a temporary measure to assure compliance with the agreement. The bill stated that it was understood that complainant would not join in reconveying the property to Mrs. Shecter until his fees were fully paid, and if they were unable to agree upon an amount as the fair value of his services, the matter would be submitted to arbitrators. However, after obtaining an absolute divorce for Mrs. Shecter, she denied that she owed him anything, but threatened to enter suit to compel him to join in reconveying the property, while her mother demanded the return of the $500 which she had deposited with him as a guarantee in 1945. Because of these threats complainant entered the instant suit.
On June 9, 1948, eight days after the institution of suit, complainant petitioned for leave to amend his bill by adding Mrs. Simon as codefendant. Harold Lewis, newly retained attorney for Mrs. Shecter, was served with a copy of his petition. On June 12 he filed a reply petition declaring (1) that Mrs. Simon was a non-resident of the State of Maryland, (2) that he was not her attorney of record, and (3) that, inasmuch as complainant was seeking a decree in personam, personal service was required. On June 22 Mrs. Shecter demurred to the bill, and the Court sustained the demurrer.
It is conceded that Mrs. Shecter denied that complainant had any lien on her property, but complainant agreed to join Mr. Roman in reconveying the property to her without waiving his alleged lien. The property was accordingly deeded to her, and in compliance with the agreement she paid the sum of $2,500, and $500 thereof was paid for the costs and part of the counsel fee.
On July 1, 1949, one year and one month after the filing of the original bill, complainant filed an amended bill, which named Mrs. Shecter and Mrs. Simon as defendants. Mr. Lewis was served with a copy of the amended bill, but he explained to the Court that, while he had accepted the service of the amended bill, since he had entered his appearance for Mrs. Shecter, he was not the attorney of record for Mrs. Simon and accordingly refused to accept service on her behalf. On October 14, 1949, the Court ruled that inasmuch as Mrs. Simon had not been summoned, she was not before the Court.
The Court also sustained a demurrer to the amended bill, but again gave complainant leave to amend. On November 12, 1949, complainant filed his second amended bill. In addition to the allegations of the original bill and the first amended bill, the second amended bill alleged that defendants agreed to authorize complainant to pay $150 to Mr. Singerman out of the sum of $500 delivered to complainant; and that after paying him that sum and the costs of suit, and allowing for the further sum of $100 claimed by Mr. Singerman under the Court's decree, only about $75 remained for complainant, and this is all he has ever received for his services. The bill alleged that Mr. Lewis accepted service on behalf of both defendants, and afterwards refused to accept service on behalf of Mrs. Simon. The bill further alleged that Mrs. Shecter is planning to dispose of her property on Park Heights Avenue 'as soon as it is freed from the possible lien or other legal restraint,' and this is her only property in Maryland of sufficient value to satisfy a judgment in favor of complainant for the value of his services.
The bill prays the Court: (1) to construe the guarantee agreement between complainant and Mrs. Simon, and after determining the amount defendants are indebted to complainant for his services, to decide whether complainant has the right to set off against Mrs. Simon's $500 deposit the amount due for his services; (2) to pass upon Mr. Singerman's claim for an additional fee of $100; and (3) to pass upon complainant's claim to a lien upon the real property and restrain Mrs. Shecter from conveying or encumbering the property unless she files a bond to guarantee payment of any judgment that may be rendered against her.
Mrs. Shecter again demurred, and the Court sustained her demurrer without leave to amend. From that decree, which in effect dismisses the suit, complainant brought this appeal.
It cannot be controverted that, since Mrs. Simon has not been summoned in this case and Mr. Lewis has refused to accept service of process on her behalf, she has not been brought into Court. Furthermore, it is conceded that Mr. Singerman has not been made a party to the case or summoned. The Court cannot adjudicate complainant's claim to an additional counsel fee, even if equity had jurisdiction. Consequently the only question that remains for decision is whether the allegations are sufficient to warrant the intervention of equity to give complainant relief against Mrs. Shecter.
Under the Uniform Declaratory Judgments Act, any person interested under a deed or written contract may have determined any question of construction or validity arising under the instrument, and obtain a declaration of rights, status or other legal relations thereunder. Code Supp.1947, art. 31A, § 2. But since Mrs. Simon is not summoned in this case, the Court cannot construe the guarantee agreement. Thus the ultimate question with which we are confronted is whether complainant can assert any right to an...
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