Byram v. Miner

• Decision Date: 16 March 1931
• Docket Number: No. 8896.,8896.
• Citation: 47 F.2d 112
• Parties: BYRAM et al. v. MINER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

47 F.2d 112 (1931)

BYRAM et al. v. MINER et al.

No. 8896.

Circuit Court of Appeals, Eighth Circuit.

February 13, 1931.

Rehearing Denied March 16, 1931.

C. O. Newcomb, of Minneapolis, Minn. (F. W. Root and A. C. Erdall, both of Minneapolis, Minn., on the brief), for appellants.

F. M. Miner, of Minneapolis, Minn (Robert J. McDonald, of Minneapolis, Minn., on the brief), for appellees.

Before STONE and BOOTH, Circuit Judges, and DEWEY, District Judge.

BOOTH, Circuit Judge.

This is an appeal from a decree in favor of appellees, interveners below, involving their right to recover from defendants, appellants herein, certain moneys claimed by interveners on account of attorneys' liens in three actions against defendants in which interveners were attorneys for the plaintiff.

The main facts are undisputed, and are, in substance, as follows:

On July 5, 1925, one Minnie A. Erz, her husband, Mathias, and minor daughter, Virginia, residing at Watauga, S. D., were riding in an automobile driven by the husband. At a railroad crossing between Morristown and Watauga, in Corson county, S. D., on the line of the Chicago, Milwaukee & St. Paul Railway Company, said automobile was struck by a railroad train belonging to said company. The husband and daughter were killed. The wife, Minnie A. Erz, was injured.

In February, 1926, Mrs. Erz brought three actions against appellants, hereinafter called defendants, in the state district court of Ramsey county, Minn. One action was in the name of Mrs. Erz for her personal injuries sustained in the accident above noted. The other two actions were brought by her as special administratrix of the estates of her daughter and husband, respectively; she having been duly appointed such administratrix by the probate court of Hennepin county, Minn. Appellees Miner and McDonald were attorneys for Mrs. Erz in each of these actions, having been appointed by a written agreement of employment. On March 9, 1926, these three actions were removed to the United States District Court, District of Minnesota, Third Division. Issue was joined in these actions in the federal court, and they stood undetermined and for trial therein until the opening day of the November, 1927, term.

Meantime, in September, 1927, while Mrs. Erz was undergoing treatment at the Mayo Clinic at Rochester, Minn., one Bingham, a claim agent for the defendants, called on her and advised her that he had come to settle her three cases. He told her, among other things, that the railroad company was not legally liable, but that it would cost about $3,500 to bring witnesses from South Dakota to Minnesota to try the cases. Bingham read her a letter, purporting to be from Miner and McDonald, to the effect that Miner and McDonald advised the railroad company that plaintiff's three cases were not cases of liability, and that they were not going to try the cases, and that they could not recover for her upon the trial. Bingham told her further that she need not worry about the fees due her attorneys. Bingham suggested going to Minneapolis to consummate a settlement. She objected to this, and then Bingham told her they could settle the cases at Rochester, Minn., and that the company would settle the three cases that were then pending in the United States court for Minnesota for $3,550. Mrs. Erz took a week to think the offer over, and about October 8, 1927, Bingham again called and again offered her $3,550 in settlement, and she agreed with Bingham that she would accept the $3,550 in settlement of her three cases then pending in the United States court for Minnesota. Bingham then advised her for the first time that it would be necessary for her to go with him to South Dakota to make the settlement and that it could not be made either at Rochester or Minneapolis, but had to be made at Lemmon, S. D.; that he could not settle at Rochester because she would have to be appointed administratrix within the state of South Dakota. The result was that early in October, she went with Bingham to South Dakota at the expense of defendants, where the following steps were taken under Bingham's guidance: She was introduced to a local attorney there, and with his aid was appointed special administratrix of the estates of her deceased husband and daughter by the county court for Corson county, S. D.; she at once began three actions in the circuit court of the Twelfth judicial circuit of South Dakota against defendants for damages on the identical causes of action set up in the cases pending in the United States District Court in Minnesota; service was had on the defendants; and on October 10, 1927, she and the attorney provided for her by Bingham, and the local attorney for defendants, appeared before the judge of said Twelfth judicial circuit at Lemmon, S. D. The attorneys for defendants tendered judgments in said three actions as follows: $1,550 in the action involving the death of Mr. Erz; $1,000 in the action involving the death of the daughter; and $1,000 in the action involving injuries to Mrs. Erz. These tenders were accepted by Mrs. Erz, and judgments were entered thereon accordingly. On the same day, the amounts of the judgments were paid in cash by Bingham to Mrs. Erz, and the several judgments were duly satisfied of record.

On about October 19, 1927, the answers of the defendants in the three actions then pending in the United States District Court in Minnesota were amended, and in each of such amended answers, the judgments and the satisfactions thereof in the circuit court of the Twelfth judicial circuit for Corson county, S. D., were asserted in bar of the further prosecution of the actions.

At the opening of the November, 1927, term of the United States court for the Third division of the district of Minnesota, the actions were dismissed on account of the bar of the three judgments last mentioned. Thereafter Miner and McDonald, the attorneys for the plaintiff in said actions, petitioned the court to have the dismissals vacated and set aside for the purpose of having the court summarily determine their liens and grant to them judgment against defendants for the amount of their liens, or, in the alternative, to permit Miner and McDonald as lien claimants to intervene in said actions for the purpose of having the court determine their liens. The application of Miner and McDonald was contested by the defendants. After various hearings, the court, on February 25, 1929, entered an order containing the following:

"The questions of fact involved in this proceeding ought not to be determined summarily by this court on affidavits, and I am therefore granting the motion of Miner & McDonald in so far as they ask for permission to intervene in these actions and to have them reinstated for that purpose. They may, within ten days after the filing of this order, serve and file their complaint or complaints in intervention, and the defendants may have ten days within which to answer the complaints, and thereafter Miner & McDonald may have ten days in which to reply. After issues are joined, the actions may be placed upon either a general or special term calendar for trial.

"In so far as the dismissals of these actions affect the right of Miner & McDonald to intervene for the purpose of collecting the amount of their lien, they may be set aside."

In their pleadings, the interveners alleged the foregoing facts, and further alleged that the proceedings in South Dakota were all without their knowledge or consent. They further alleged that, at the time of the settlement in South Dakota, interveners had an attorney's lien on the several causes of action for services and necessary expenses incurred. The prayer was for judgment against defendants in the sum of $1,775 for services as attorneys, and for $220.35 for expenses.

The defendants in their pleading alleged that the proceedings in South Dakota leading up to the judgments were all regular; that the judgments and satisfactions thereof were valid; that said judgments were entitled to full faith and credit in the courts of South Dakota and in the United States District Court of Minnesota; that said judgments in South Dakota merged the causes of action sued upon; that said causes of action no longer existed; and that defendants had never been served with notice of an attorney's lien by interveners.

The case came on for trial on November 1, 1929, and it was stipulated in writing that the intervention in the three cases should be consolidated as a cause in equity, and heard as a cause in equity; that a jury should be waived, and the matter proceeded with as if the cause was originally brought on the equity side of the court, and it was then ordered by the court to be transferred from the law to the equity side.

Trial was had, and a decree was rendered December 31, 1929, in favor of the interveners and against the defendants as follows:

"These causes came on to be heard at a term of this court held on the first day of November, 1929, and were tried as a single action in equity, pursuant to a stipulation of the parties, and thereupon, upon consideration thereof, the court duly filed its decision and order for a decree. Pursuant to said decision and order,

"It is Ordered, Adjudged and Decreed as follows:

"That the interveners have and recover against the defendants herein the total sum of $1101.56 and interest thereon at the rate of six per cent. per annum from the 11th day of October, 1927, together with their costs and disbursements in connection with the proceedings in intervention."

The present appeal is from said decree.

One of the contentions of the defendants is that the South Dakota judgments constituted mergers of the causes of action, and that the attorneys' liens ceased to exist when the causes of action became merged in the judgments.

An examination of the character of an attorney's lien in Minnesota is necessary. The Minnesota statute providing for attorneys' liens, so far as here material,...