Boettcher v. Criscione

• Decision Date: 30 June 1956
• Docket Number: Nos. 40125,40126,s. 40125
• Citation: 180 Kan. 39,299 P.2d 806
• Parties: Evelyn Mertz BOETTCHER, Edward L. Mertz, Betty Clark Grandi, Jewell Clark Lewis, Barbara Clark Thomas, Carolyn Clark Fargo, Plaintiffs, v. Catherine W. CRISCIONE, Appellant; Max Wyman, Appellee; George J. Little and Helen H. Little, Intervenors. Max WYMAN, Appellee, v. Catherine W. CRISCIONE, Appellant.
• Court: Kansas Supreme Court

Page 806

299 P.2d 806

180 Kan. 39

Evelyn Mertz BOETTCHER, Edward L. Mertz, Betty Clark Grandi,

Jewell Clark Lewis, Barbara Clark Thomas, Carolyn

Clark Fargo, Plaintiffs, v. Catherine W. CRISCIONE, Appellant;

Max Wyman, Appellee;

George J. Little and Helen H. Little, Intervenors.

Max WYMAN, Appellee, v. Catherine W. CRISCIONE, Appellant.

Nos. 40125, 40126.

Supreme Court of Kansas.

June 30, 1956.

Rehearing Granted Oct. 3, 1956.

Syllabus by the Court.

1. An order sustaining a motion to strike is appealable as a final order if it determines any part or all of the lawsuit, G.S.1949, 60-3302; 60-3303 or, as applied to an answer, if it in effect deprives the defendant of a meritorious defense which, if supported by evidence, would defeat all or part of plaintiff's cause of action. G.S.1949, 60-3302; 60-3303.

2. Common barratry and champerty are synonymous and are generally defined as being in violation of public policy and our statute. G.S.1949, 21-745. There is no set rule to determine such violation; it turns largely on the facts and circumstances of the case.

3. Under the facts and circumstances reflected in the opinion, the general essential elements to constitute champerty are that one person having otherwise no interest in the subject matter of another's case makes an agreement to defray, in whole or in part, the expenses of the other's litigation whereby the fruits thereof are to be divided. The time of entering into the contract as well as whether the litigation is pending or to be commenced is immaterial so long as such litigation is contemplated.

4. The record examined and it is held, where an attorney cannot recover expenses and costs paid out of pocket, the contract is not one generally providing for a contingent fee but contains elements of champerty.

5. As further set out in the opinion, the facts and circumstances disclose that the attorney as principal ratified a contract of employment obtained by a third person in accepting the fee in case of recovery in a contemplated litigation. It is held, the attorney as principal is bound either to repudiate the entire transaction or to accept it as a whole.

6. In an answer a defendant may plead as many defenses as are available. G.S.1949, 60-710.

7. A cause of action in a petition which is barred by the statute of limitations cannot be used to obtain affirmative relief; however, it may be used as a pure defensive matter in an answer, following Crumrine v. Cummings, 172 Kan. 290, 240 P.2d 463.

8. Further examination of this record shows that champerty and common barratry is a defense to the action in question and it is held, the trial court erred in striking allegations of such defense from the first amended answers.

Ora D. McClellan, Wichita, Gerald L. Michaud, Harry E. Robbins, Jr., Carol V. Creitz, and John B. Wooley, Wichita, on the brief, for appellant.

Don Wyman, Hutchinson, for appellee.

ROBB, Justice.

These are consolidated appeals taken from orders of the trial court sustaining motions to strike allegations of appellant's first amended answers. In case No. 40,125 the first amended answer was filed in response to appellee's intervening petition in a partition suit originally filed by others and in case No. 40,126 it was in response to appellee's petition to quiet title and for partition.

There were other parties in the original action in case No. 40,125 but the consolidated appeals involve only Max Wyman, who will hereafter be referred to as plaintiff, and Catherine Criscione, who will be referred to as defendant. Due to the similarity of the first amended answers, they will be herein treated as one.

Summarized, the salient facts are that Laura C. Woodford, a widow and resident of Hutchinson, Reno county, died intestate on February 21, 1947, leaving no surviving children; on September 20, 1949, defendant was contacted at her home in Washington, D. C., by George J. Little and his wife; they presented her with a card, which is later set out herein, and stated to her that she was an heir of the Laura C. Woodford estate of which fact they had information as genealogists.

Two contracts, later set out herein, were presented to and executed by defendant. In the first of these she employed the Littles as genealogists to assemble evidence to perfect her heirship, and in the second she retained plaintiff, an attorney of Hutchinson, to present her claim in the probate court of Reno county. These contracts read as follows:

'Washington, D. C.

'September 20-1949

'I hereby authorize Geo. J. Little and Helen Little (Little & Little) as genealogists to make research and assemble evidence and deliver same to attorney Max Wyman, Hutchinson, Kansas, to prove my claim as an heir of Laura Woodford, deceased, and agree to pay them one-fourth of any recovery made from said estate.

'In event I am not declared to be an heir and recover an interest, I am to be to no expense whatever.'

'Washington, D. C.

'September 20-1948

'I hereby authorize and employ Max Wyman of Hutchinson, Kansas, as my attorney to prosecute my claim as an heir of the Estate of Laura Woodford, deceased, and in the event of recovery of any money, interest or property--I agree to pay said attorney an equal of one fourth of all monies, interest and property recovered to me. And authorize the Administrator of said estate to pay him said quarter part of my interest upon recovery of same.

'It is understood that I shall not be obligated to pay said attorney anything unless I am declared to be an heir and recover as such.'

It will be noticed that the Little contract bore the year date of 1949, which is correct notwithstanding the year date of 1948 on plaintiff's contract.

In the probate proceedings and later on appeal in the Reno district court, defendant was determined to be an heir of the Woodford estate and thereby received $5,402.32 in cash and an undivided 36/96th interest in a large amount of real estate. The check for $5,402.32 was delivered to plaintiff and remitted in toto to defendant. Plaintiff represented defendant throughout the mentioned probate and district court proceedings wherein other heirs of the Woodford estate were also determined. These other heirs subsequently filed suit to partition the real estate, which was resultingly sold, but defendant's share of the proceeds was held by the court subject to further order.

Plaintiff, as intervenor in the partition action, filed a motion and petition claiming by reason of his contract of employment an undivided one fourth interest in defendant's share in the cash, rents, profits and proceeds realized from the Woodford estate and further, plaintiff asked for an accounting and that the judgment be a lien and that it be foreclosed.

Plaintiff also filed an independent attachment and partition action on the same grounds and asked the same relief against defendant as is set out in the preceding paragraph.

In response to these actions of plaintiff, defendant filed her answer. Plaintiff filed motions to strike and to make definite and certain, which were sustained. Defendant then filed her first amended answer, the allegations of which, like her answer, were based on the same theory that the contracts were champertous, void and unenforceable as against public policy but she set out in much more detail the facts upon which she relied as constituting champerty. Plaintiff again filed motions to strike and to make definite and certain. The trial court's order sustained these motions and this appeal by defendant from those adverse rulings followed.

That part of plaintiff's motion to make definite and certain which was sustained by the trial court required defendant in the first paragraph of her first amended answer to set forth and describe the facts upon which she sought to prove that George J. Little was the agent of plaintiff, and also to set forth in her fifth and final paragraphs of said amended answer any additional grounds on which she contended the contract with plaintiff was void.

The trial court sustained plaintiff's motion to strike the following portions of defendant's first amended answer:

'That subsequent to the signing of said purported contracts, as aforesaid, and on the same day and at other times subsequent thereto, the said George J. Little on his own behalf and as agent of the said Max Wyman, stated to the defendant that the following language in the Wyman contract:

"It is understood that I shall not be obligated to pay said attorney anything unless I am declared to be an heir and recover as such.' * * *, and the following language in the Little contract:

"In event I am not declared to be an heir and recover an interest, I am to be to no expense whatever, * * *,' meant that the said Littles and the said Wyman would save defendant harmless from any costs and secure all evidence necessary to prove defendant's claim as an heir of Laura Woodford, deceased; and the said Little acting in his own behalf and as agent for the said Wyman, orally promised to do so; that in consideration for said promise defendant permitted the said Little to take said contracts as the said Little stated to defendant that he wanted to get the contracts in the mail that evening.

'After defendant signed the Little and Wyman contracts, the said Littles...