Bishop v. United Rys. Co. of St. Louis

• Decision Date: 07 May 1912
• Citation: Bishop v. United Rys. Co. of St. Louis, 147 S.W. 170, 165 Mo.App. 226 (Mo. App. 1912)
• Parties: BISHOP et al. v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

147 S.W. 170

BISHOP et al. v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

May 7, 1912.

1. ATTORNEY AND CLIENT (§ 192)—COMPENSATION —LIEN—ENFORCEMENT.

In an action by an attorney of record to enforce his lien against the defendant, who

compromised with plaintiff, it appeared that plaintiff discharged the first attorney of record. Held, that whether or not the discharge was for good cause was immaterial, so far as affecting the right of the second attorney to compensation.

2. ATTORNEY AND CLIENT (§ 177)—COMPENSATION —LIEN—PERSONS ENTITLED.

Under Rev. St. 1909, § 964, providing that the compensation of an attorney is governed by agreement, and that from the commencement of an action or the service of an answer containing a counterclaim the attorney who appears for a party has a lien on his client's cause of action, which cannot be affected by any settlement between the parties, attorneys of record, who appear for plaintiff after the commencement of the action, and after her discharge of the original attorney, have a lien; the phrase providing that an attorney should have a lien from the commencement of the action, merely marking the earliest time at which it may be acquired, and the purpose of the statute being to give a lien to every attorney who appears.

3. ATTORNEY AND CLIENT (§ 192)—COMPENSATION —LIEN.

Where plaintiff discharged her first attorney, with whom she had an agreement that he should receive 40 per cent. of any recovery, and engaged other attorneys, making an agreement to give them 50 per cent. of the recovery, and the defendants settled with plaintiff, paying her $1,000, the second attorneys were, under Rev. St. 1909, § 964, giving attorneys of record a lien, entitled to recover the full amount of their compensation from defendant, regardless of whether the first attorney was entitled to the full amount of his compensation; for, even it he was, the plaintiff would retain sufficient surplus to pay the second attorneys.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by John E. Bishop and others against the United Railways Company of St. Louis. From a judgment for plaintiffs, defendant appeals. Affirmed.

Action by plaintiffs to recover damages for the deforcement by defendant of their lien as attorneys upon their client's cause of action against the defendant. The plaintiffs had judgment, and the defendant has appealed. The facts are as follows: On January 16, 1907, one Mary Harrigan, having a cause of action against the defendant, commenced suit thereon in the circuit court. John J. O'Connor was the attorney who appeared for her then. As compensation for his services, he was to receive 40 per cent. of any amount recovered. He appeared as her attorney up to June 4, 1907, when she discharged him for alleged good cause, and caused a copy of the discharge (it being in writing) to be filed in court and noted on the record. Thereafter he did not appear. On the same day, by leave of court, the plaintiffs formally entered their appearance in said case as attorneys for Mary Harrigan, having been employed by her to act in that capacity under an agreement that they should be "paid a fee or compensation for their services herein rendered equal to one-half (½) of whatever sum the said Mary Harrigan shall realize or be paid or recover on said claim, whether the same be collected by suit, compromise or agreement, before or after judgment rendered." Thereafter they solely appeared in the case as such attorneys, making with counsel for defendant stipulations for continuances and filing a motion and a reply, etc. On October 28, 1907, while said case was still pending, undetermined, the defendant, dealing directly with Mary Harrigan, settled her cause of action by paying her $1,000, without the knowledge or consent of plaintiffs or of O'Connor. Plaintiffs have never been paid anything for their services; neither has O'Connor been paid anything for his. The trial was to the court, and the finding and judgment was in favor of the plaintiffs for $500.

Boyle & Priest, Morton Jourdan, T. M. Priest, and Paul U. Farley, all of St. Louis, for appellant. John E. Bishop, Thos. H. Cobbs, and Albert E. Hausman, all of St. Louis, for respondents.

CAULFIELD, J. (after stating the facts as above).

1. Defendant complains that in the single declaration of law given by the trial court the question of whether O'Connor was discharged for good cause was ignored. This question was properly ignored, as it concerned only O'Connor's right to compensation and his lien therefor, matters which have no relation to the controversy between the parties to this suit.

Plaintiffs claim their lien under section 964 of the Revised Statutes of Missouri 1909, the material parts of which are as follows: "The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim, the...