Bell v. Board of Com'rs of Lake County

• Decision Date: 08 June 1914
• Docket Number: 3919
• Citation: 26 Colo.App. 192,141 P. 861
• Court: Colorado Court of Appeals
• Parties: BELL v. BOARD OF COM'RS OF LAKE COUNTY et al.

141 P. 861

26 Colo.App. 192

BELL v. BOARD OF COM'RS OF LAKE COUNTY et al.

No. 3919

Court of Appeals of Colorado

June 8, 1914

Rehearing Denied July 13, 1914

Error to District Court, City and County of Denver; H.L. Shattuck Judge.

Action by Charles R. Bell against the Board of Commissioners of Lake County and another. There was a judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.

H.E. Luthe and L.M. Goddard, both of Denver for plaintiff in error.

Francis E. Bouck and Jos. W. Clarke, both of Leadville, for defendants in error.

KING J.

For brevity, the plaintiff in error will be called plaintiff, as in the trial court. The board of county commissioners will be called the board. Schradsky will be so designated.

Prior to the 27th day of November, 1903, a judgment had been rendered in the district court of Arapahoe county against the defendant the board of county commissioners of Lake county in favor of the defendant Frieda Schradsky, for the sum of $11,496.75, and affirmed by the Supreme Court. Lake County v. Schradsky, 31 Colo. 178, 71 P. 1104. The board having refused to pay the judgment, the said Schradsky, on the 27th of November, 1903, began and thereafter prosecuted a mandamus proceeding against the board for the purpose of compelling it to levy a tax for the payment of said judgment. The complaint in the mandamus proceeding was filed by one H.B. Johnson, as attorney for Schradsky. During the pendency of the suit, and before trial, Johnson departed this life, and the plaintiff herein was employed by Schradsky as attorney to prosecute the suit, and it was agreed that, as compensation for his services, he should receive out of said judgment, when collected, an amount equal to 20 per cent. of the judgment. If he failed to collect, he was to receive no compensation. The judgment against Lake county aforesaid was obtained by Schradsky in a suit upon interest coupons cut from negotiable bonds issued by the said county of Lake; both interest and principal being payable to bearer. The interest coupons had been delivered to Schradsky by said Johnson as collateral security for moneys advanced to him by her and one Leo Bach, and the amount of the judgment was in excess of the sum required to satisfy the indebtedness for which the coupons had been pledged. See Lake County v. Schradsky, supra. After the employment of plaintiff herein by Schradsky to prosecute the mandamus proceeding upon the agreement hereinbefore mentioned, a contract, dated August 10, 1903, between a man named Sullivan and said Johnson, was discovered among the papers of Johnson's estate, by which it was agreed that the said interest coupons had been by said Sullivan delivered to Johnson for sale or collection by such means as Johnson might employ, and that Johnson had conveyed the same to Frieda Schradsky and brought suit thereon and obtained judgment, in consideration of which, and other legal services, Sullivan assigned to Johnson one-half of the said judgment, principal and interest, and each recognized the other as the owner of one-half of said judgment. Upon discovery of this contract, on or about May 1, 1904, Bell demanded and obtained an agreement upon the part of said Sullivan and the administratrix of the estate of said Johnson, by which, for prosecuting the said mandamus proceeding to final conclusion, plaintiff should receive, as his compensation, out of said judgment, when collected, an amount equal to 20 per cent. thereof, supplementing and ratifying the agreement made by Schradsky. The suit was prosecuted to final judgment in the district court, rendered in Schradsky's favor November 5, 1904, which was affirmed by the Supreme Court on the 6th day of April, 1908. Lake County v. Schradsky, 43 Colo. 84, 95 P. 312. The county having still failed to pay the judgment or to make levy therefor, the plaintiff caused the board to be cited into court for contempt for refusal to comply with the order in the mandamus proceeding, whereupon the board paid into court, in part satisfaction of the judgment, a portion thereof which it admitted to be due to Frieda Schradsky for her interest in said judgment, but failed and refused to pay the equitable or beneficial interest of said Sullivan, or the 20 per cent. thereof claimed by plaintiff as his interest in said judgment under the agreement aforesaid. Such refusal to pay was based upon an alleged assignment to the county by Sullivan of his interest in said judgment, and satisfaction thereof by reason of said assignment. Plaintiff brought this suit against the board and said Schradsky, praying for a judgment against the board for an amount equal to 20 per cent. on one-half of said judgment, and that "said sum be decreed to be a lien upon the judgment against the defendant and in favor of the said Schradsky," and that the county be required to pay into court that amount to satisfy plaintiff's lien on the said judgment, and that Schradsky be required to prosecute and enforce the judgment of mandamus as against the board for the purpose of collecting a sum sufficient to pay plaintiff's demand. Schradsky confessed the bill. The assignment, which the board contends was an assignment of the judgment to it, was attached to the agreement between Sullivan and Johnson hereinbefore mentioned, was dated April 2, 1906, and was in the following words:

"For value received, I hereby sell, assign, transfer and set over unto Jos. A. Lamping, county treasurer of Lake county. Colorado, and his successors in office, for the use and benefit of said Lake county, a municipal corporation, all my right, title and interest in and to the foregoing contract, and all my rights thereunder."

On or about the 18th day of November, 1908, plaintiff filed in the district court of the city and county of Denver, in which court the mandamus suit was pending, a written statement constituting his claim of attorney's lien.

It was shown by the evidence of two witnesses, and not disputed, that in 1905, prior to the aforesaid assignment to Lake county, plaintiff notified the chairman of the board that he had and claimed a lien on the said judgment, and of the amount thereof; and it is also in evidence that the same statements were made to two other members of the board, and that said statements were made at a time when the said chairman and the said members of the board were endeavoring to negotiate a settlement of said judgment. It is also in evidence, and not disputed, that the county attorney of Lake county, who secured from Sullivan the assignment of the contract, knew that Bell had a claim against said judgment, although perhaps not the amount thereof. It appears from the testimony of the county attorney that at about the time he took the assignment, but whether before or after is not shown, he had a conversation with plaintiff herein, in which the county attorney inquired as to whether Sullivan had settled with Bell for his services, and was advised that he had, and that the county attorney understood that Bell had reference to the Schradsky judgment; but it is also shown that Bell had prosecuted suits for Sullivan against Lake county, in Sullivan's name, and that settlement for those services had been made, and that Bell had reference to those judgments of claims, and not to the judgment which stood in the name of Schradsky; and it is shown that, at the time of such conversation, Bell did not know that Sullivan's equitable interest in the Schradsky judgment had been assigned to Lake county, nor does it appear that Bell knew any such assignment or settlement was contemplated.

When plaintiff offered evidence that the board had actual knowledge of his claim, objection was made and sustained, and exceptions duly reserved; the evidence was then admitted subject to being struck out if the court, after consideration of authorities to be produced, retained its opinion that the evidence was not admissible. At the conclusion of the trial, the court sustained the objection that was made to the admissibility of the said testimony, but did not expressly strike it out, although doubtless it was so intended. It was found by the court that the testimony offered by Bell and his witnesses, and the testimony of Judge Cavender (then county attorney) for defendant, was true, as also all other testimony, except that of Sullivan, to which it did not give credit. Sullivan's testimony was the only testimony offered which in any material matter disputed the evidence offered by the plaintiff and his witnesses. Cavender and the plaintiff differed in some respects, but not substantially upon any matter of importance. Upon such findings of fact, the court took the case under advisement as to the law, and later rendered judgment for the defendant county, without giving its reasons therefor.

We think it unnecessary to determine whether plaintiff secured an attorney's lien as such by virtue of giving notice as provided by statute (section 293, Mills' Ann.St.1912, § 242; Rev.St.1908), as the decision will turn on another point.

1. Schradsky was the legal owner of the judgment obtained against Lake county upon the interest coupons assigned to and held by her as collateral security. She held the judgment in trust, coupled with an interest in herself, and as such trustee was obligated to enforce payment of and collect the same. Lake County v. Schradsky, 31 Colo. 178, 182, 71 P 1104. It was also her right and duty to apply the proceeds first to the payment of the amount due her and Leo Bach, with costs of collection, and thereafter to account to her pledgor Johnson (or Johnson and Sullivan) for any balance of said judgment in excess of her claim, with costs and expenses, including the attorney's fees. Her agreement with plaintiff...