Barthels v. Garrels
| Decision Date | 30 December 1920 |
| Citation | 227 S.W. 910,206 Mo.App. 199 |
| Parties | AUGUST BARTHELS, Plaintiff, W. B. and FORD W. THOMPSON, Respondents, v. WILLIAM L. GARRELS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Karl Kimmel, Judge.
AFFIRMED.
Judgment affirmed.
T Percy Carr for appellant.
(1) The evidence offered by movements at the hearing below was wholly insufficient to sustain the burden of proof placed upon them in this case. Thompson v. Stearns, 197 Mo.App 354-356, 195 S.W. 45-46. (2) Where an attorney is employed on a contingent fee consisting of a percentage of the amount recovered, and the client compromises the case, the amount for which the case is settled is the basis on which the attorney's percentage is to be computed. Curtis v Metropolitan Street R. Co., 118 Mo.App. 341, 94 S.W. 762; s. c., on second appeal, 125 Mo.App. 369, 102 S.W. 62; Wait v. Atchison, T. & S. F. R. Co., 204 Mo. 491, 103 S.W. 60; Boyle v. Metropolitan Street R. Co., 134 Mo.App. 71, 114 S.W. 558; Boyd v. G. W. Chase & Son Mercantile Co., 135 Mo.App. 115, 115 S.W. 1052; Whitwell v. Aurora, 139 Mo.App. 597, 123 S.W. 1045; Hurr v. Metropolitan Street R. Co., 141 Mo.App. 217, 124 S.W. 1057; United R. Co. v. O'Connor, 153 Mo.App. 128, 132 S.W. 262; Stephens v. Metropolitan Street R. Co., 157 Mo.App. 656, 138 S.W. 904; Belch v. Schott, 171 Mo.App. 357, 157 S.W. 658; Whitecotton v. St. Louis & H. R. Co., 250 Mo. 624, 157 S.W. 776; McCall v. Atchley, 256 Mo. 39, 164 S.W. 593; Gillespie v. American Car & Foundry Co., ___ Mo.App. ___, 194 S.W. 1064; Mytton v. New York, C. & St. L. R. Co., ___ Mo.App. ___, 198 S.W. 189.
W. B. & Ford W. Thompson Pro Se.
This is an appeal taken from an order of the circuit court setting aside the satisfaction of its judgment to the amount of the lien claimed thereon by the attorneys for the plaintiff.
Messrs. W. B. and Ford W. Thompson were attorney for August Barthels, plaintiff in a suit for libel instituted September 14, 1911, against W. L. Garrels, defendant. The trial resulted in a verdict and judgment rendered on April 23, 1913, for plaintiff, in the sum of nine thousand dollars, sixty-five hundred dollars being compensatory, and twenty-five hundred dollars exemplary or punitive damages. Mr. T. Percy Carr represented defendant therein. Motions for new trial and in arrest of judgment were duly filed, overruled, and an appeal taken to the supreme court at the June term, 1913.
At the time of the institution of the suit Messrs. Thompson were attorneys for one W. A. Buddecke, a friend of Mr. Barthels in a libel suit against W. L. Garrels, and also were attorneys for the said Barthels in other matters. Both libel suits grew out of a pamphlet issued by defendant Garrels.
Within three years from the rendition of judgment in the Barthel's case, Messrs. Thompson caused to be sued out of a writ of scire facias, and thereupon judgment of revivor was rendered by the court on September 27, 1916.
The case of Barthels against Garrels was docketed for hearing in the Supreme Court on the 17th day of October, 1916. On August 25, 1916, defendant submitted to the Messrs. Thompson a proposed bill of exceptions in the case, some six hundred pages, which was examined within the three day period allowed by the rule of court and written objections thereto prepared, and a copy of the objections served upon Mr. Carr's firm.
The bill of exceptions was presented to Circuit Judge Anderson and received his approval and was filed in the case, although the case had been tried before Judge Wilson A. Taylor, who was not then in the city. Messrs. Thompson then filed a motion to set aside the order of approval of the bill of exceptions made by Judge Anderson, which motion was never passed upon.
Messrs. Thompson were served with abstract and brief on the 18th day of September, 1916, and immediately wrote their client Barthels, requesting him to come to their office; they also phoned his residence, and visited his residence, in an effort to get in touch with him, but were unsuccessful. In the meantime they prepared an additional abstract of the record, and a brief, causing the same to be printed and served on the 7th day of October, 1916, on Mr. Carr, attorney for defendant, and sent the requisite number of copies to the clerk of the Supreme Court for filing.
You have been representing me in the cases of Aug. Barthels v. W. L. Garrels and in the case of the First Nat. Bank of Las Vegas, N. M. v. Franklin Bank, and others, both the above cases now in the Mo. Supreme Court, also you represent me in the case of Aug. Barthels v. Franklin Bank and others being case No. 60302 Circuit Court of St. Louis.
I have determined to dispose of your services in all the cases mentioned and in any other matters in which you may assume to represent me. You are directed to withdraw forthwith as attorneys in all suits mentioned I do not desire any further communications with you and will repudiate any actions you may take hereafter. I intend to manage my own matters and when necessary will engage other counsel.
The reason for the writing of this letter and the circumstances under which it was written, are testified to by plaintiff Barthels, to be: that he held a note against Buddecke which would be outlawed in May, 1916, and had requested the Messrs. Thompson to act for him in getting a settlement or payment of the note, which they declined to do because both Barthels and Buddecke were their clients.
Suit was instituted on the note against Buddecke in Washington County, Missouri, in May, 1916, and judgment for something like five thousand dollars was obtained by Barthels against Buddecke. The reason for the suit being instituted in Washington County was because it had appeared from some matters pertaining to litigation in which Buddecke had been interested, that Washington County was his home, but when this suit was instituted by Barthels against Buddecke, his residence in Washington County appears to have been denied, so that it became a question of serious import in that case to establish Buddecke's residence in Washngton County in order to give the court before whom the case was pending jurisdiction. In pursuit of evidence to establish Buddecke's residence in Washington County, Barthels endeavored to see Garrels and made several trips to the Franklin Bank in an effort to see him, being finally advised that he might see Garrels at the office of his attorney Mr. Carr. Barthels in company with his attorney from Washington County, Mr. Cooper, met Mr. Garrels at Mr. Carr's office. The suit in Washington County resulted in judgment for Mr. Barthels and against Mr. Buddecke for the amount sued for. Mr. Barthels testified that it was about that time that he told Mr. Garrels that he did not want to have anything more to do with the litigation; that he was sick and tired of it. Sometime, he spoke to Mr. Carr with reference to terminating the litigation. Mr. Carr declined to act for him, but introduced him to Mr. Marion C. Early, an attorney at law, with the result that Mr. Marion C. Early and Mr. E. M. S. Steward, another attorney at law, were employed by Mr. Barthels to represent him.
The letter of October 6th, hereinbefore set out was dictated by Mr. Early and signed by Mr. Barthels in the presence of defendant Garrels in Mr. Early's office.
Mr. August Barthels called upon me to-day and arranged with me to take charge of two cases pending in the Supreme Court of Missouri and one case pending in the Circuit Court here, in which cases, he advised me, you have heretofore represented him. He stated that you no longer are connected with the cases. I will enter my appearance in the same immediately.
This letter was received on the 12th day of October, 1916, and thereupon Mr. Ford W. Thompson, not being acquainted with Mr. Steward, interviewed the librarian of the St. Louis Law Library and ascertained that Mr. Steward had an office with Mr. Early; he then went to Mr. Early's office and finding Mr. Steward out, told Mr. Early that he was afraid that Mr. Steward was being made use of in a fraudulent attempt to defeat their rights as counsel for a client, and that he (Steward) was probably innocent, and thereupon Mr. Early stated that he had known Mr. Steward for a long time and that he would tell him (Steward), of the fact; that he (Thompson) had called to see him and send him (Steward) to Thompson's office.
Mr. Thompson further learned from Mr. Early that Mr. Steward had been in Eliot & Chaplin's office and that Mr. Chaplin knew him very well. He then went from Mr. Early's office to Chaplin's office, where he was assured by Mr. Chaplin that Mr. Steward possessed a good character, and that in all probability upon learning the true facts Mr. Steward would withdraw from the matter, or state the circumstances under which he had been employed, and Mr. Chaplin also undertook to send Mr. Steward to Mr. Thompson's office.
On October 14th, Mr. Steward called and held a conversation with Mr. W. B. Thompson, in which he stated that the letter of October 6th, written by Mr. Barthels to Messrs. Thompson had been written by Mr. Garrels, and that Mr. Garrels had gotten Mr. Barthels to copy the assignment. Mr. Thompson requested Mr. Steward to put that in writing.
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