Barthell v. Chi., M. & St. P. Ry. Co.

• Decision Date: 10 June 1908
• Citation: 138 Iowa 688,116 N.W. 813
• Court: Iowa Supreme Court
• Parties: BARTHELL ET AL. v. CHICAGO, M. & ST. P. RY. CO.

138 Iowa 688

116 N.W. 813

BARTHELL ET AL.

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

June 10, 1908.

Appeal from District Court, Winneshiek County; L. E. Fellows and A. N. Hobson, Judges.

Action at law to recover attorney's fees for services rendered one Chas. P. Barker. The trial court directed a verdict for plaintiffs, and defendant appeals. Affirmed.Cook, Crocker, Loomis & Tourtellot, for appellant.

E. P. Johnson and Perry S. Johnson, for appellees.

DEEMER, J.

One Barker had some horses killed by one of defendant's trains, and he employed the plaintiffs, who are attorneys at law, to bring suit against the company to recover the value of the horses so killed, agreeing to give them, for services rendered and to be rendered, 50 per cent. of whatever was received from the defendant. Barker also agreed that plaintiffs should have the settlement of the suit. Pursuant to this, employment suit was brought for Barker by these attorneys, and in the original notice, which was signed by plaintiffs as attorneys for Barker, they stated: “You are further notified that the undersigned attorneys claim an attorney's lien of 50 per cent. upon the amount due or to become due for legal services rendered and to be rendered.” After suit was commenced, by the service of the original notice the defendant settled with Barker, paying him $300 in full settlement of the cause of action. Barker died shortly thereafter, and his estate was and is insolvent. Plaintiffs then commenced this action to recover of the defendant one-half of $300, the amount paid Barker upon the settlement. The defendant moved to transfer the cause to the equity calendar, and this motion was overruled. It thereupon answered, denying any liability to Barker, and pleading the invalidity of plaintiffs' contract with him (Barker). At the conclusion of the testimony taken on the issues joined the trial court upon motion directed a verdict for plaintiffs, and defendant appeals.

Four points are relied upon for a reversal. First it is contended that the trial court erred in denying the motion to transfer to the equity calendar. This point is ruled by our previous cases, which hold that the action is at law. Sweeley v. Sieman, 123 Iowa, 183, 98 N. W. 571;Ward v. Sherbondy, 96 Iowa, 477, 65 N. W. 413;Gibson v. C., M. & St. P. R. R., 122 Iowa, 568, 98 N. W. 474;Smith v. Railroad, 56 Iowa, 720, 10 N. W. 244.

Next it is argued that the notice of the attorneys' lien was insufficient, in that it did not state for what services the lien was claimed. Code, § 321, provides that “the notice shall state the amount claimed and in general terms for what services.” The notice in this case was embodied in the original notice of suit, and advised defendant that the lien was “for legal services rendered and to be rendered.” Manifestly this had reference to the services which had been and were thereafter to be rendered in that particular case. This was a sufficient compliance with the statute, in that it stated in general terms the services for which the lien was claimed. Gibson v. Railroad, 122 Iowa, 565, 98 N. W. 474;Smith v. Railroad, 56 Iowa, 720, 10 N. W. 244.

3. The next point made is that plaintiffs' contract with Barker was and is champertous and void, in that the attorneys were given the right to settle the claim to the exclusion of Barker himself. There is no merit in this contention. The contract does not in terms give the attorneys the exclusive right of settlement. Nor does it provide that the claim should not be settled without the consent of the attorneys, as in Boardman v. Thompson, 25 Iowa, 487. The case is more like Jeffries v. Ins. Co., 110 U. S. 305, 4 Sup. Ct. 8, 28 L. Ed. 156...