Barnes Hospital v. Quinlivan

• Decision Date: 06 February 1940
• Docket Number: No. 25299.,25299.
• Citation: Barnes Hospital v. Quinlivan, 136 S.W.2d 332 (Mo. App. 1940)
• Parties: BARNES HOSPITAL v. QUINLIVAN et al.
• Court: Missouri Court of Appeals

136 S.W.2d 332

BARNES HOSPITAL v.QUINLIVAN et al.

No. 25299.

St. Louis Court of Appeals. Missouri.

February 6, 1940.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by Barnes Hospital against Dr. William F. A. Schultz, defendant, and Edward Quinlivan, garnishee, in which Preston Quick filed a paper denominated a petition for lien for attorney's fees.The circuit court entered an order that the garnishee pay into the registry of the court a certain sum within ten days, and Preston Quick filed a motion to set aside such order and for a rehearing, and such motion was overruled, and Preston Quick appeals.

Appeal dismissed.

Preston Quick, of St. Louis, pro se.

J. E. Reese, of St. Louis, for respondent.

HUGHES, Presiding Judge.

Plaintiff, the holder of a judgment against defendantDr. William F. A. Schultz, caused execution to issue and notice of garnishment to be served on Edward F. Quinlivan returnable to the September Term 1938 of the Circuit Court of the City of St. Louis, Missouri.Thereafter on September 13, 1938, interrogatories were propounded to the garnishee, and on September 14, 1938, the garnishee filed answer in which he stated that he was indebted to the defendant Schultz under a judgment obtained by said defendant against him in a justice of the peace court for the sum of $154 and costs, but that garnishee had not paid said judgment.

Thereafter on November 18, 1938, Preston Quick, an attorney, filed a paper which was denominated "Petition of Preston Quick for Lien for Attorney's Fees."The purport of said paper was that Preston Quick, as attorney for Dr. Schultz, instituted a suit in the justice court against Quinlivan; that plaintiff, in said suit, recovered against Quinlivan a judgment for the sum of $154; that petitioner Quick had an oral contract for one-third of the amount recovered on said judgment; and said petition prayed for engrafting of an attorney's lien on said judgment for one-third of $154, such lien to be prior and paramount to garnisher's judgment.

The matter was heard in the circuit court on November 30, 1938, and on December 24, 1938, the circuit court entered an order that the garnishee pay into the registry of the court the sum of $154 within ten days.

On December 28, 1938, Attorney Quick filed a motion to set aside said order of the circuit court and for a rehearing for the reason that the court erred in not ruling on his petition for the establishment of an attorney's lien and not impressing such lien against the garnisheed judgment.This motion was overruled on January 27, 1939, and Attorney Quick has perfected an appeal to this court.

On the hearing of the matter in the circuit court Attorney Quick testified that he represented Dr. Schultz in the case of Schultz v. Quinlivan before the justice of the peace wherein judgment was rendered for plaintiff in the sum of $154; that he had an agreement with Dr. Schultz that he was to have one-third of the amount realized from said judgment as his attorney's fee.His testimony was in no way questioned.

From the facts as stated above, there can be no question but that Attorney Quick is entitled to a lien for his attorney's fee against the judgment in favor of Schultz and against Quinlivan before the justice of the peace.Sec. 11716, R.S.1929 Mo.St.Ann. § 11716, p. 630.How that lien may be enforced is another question.The statute giving an attorney a lien on his client's cause of action creates a right that did not exist at common law, but it fails to provide a remedy.However, the courts in...