Carpenter v. Myers

• Decision Date: 05 February 1892
• Citation: 51 N.W. 206,90 Mich. 209
• Court: Michigan Supreme Court
• Parties: CARPENTER v. MYERS et al.

51 N.W. 206

90 Mich. 209

CARPENTER v. MYERS et al.

Supreme Court of Michigan

February 5, 1892

Error to circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

Assumpsit by Samuel Carpenter against George W Myers and Thomas Hyland, defendants, and the People's Savings Bank and Frank Schulte, garnishee defendants. Judgment for defendants. Plaintiff brings error. Reversed.

Seth E. Engle, for appellant.

Atkinson, Carpenter, Brooke & Haigh, for appellees.

GRANT, J.

Plaintiff brought suit to recover his own and several other labor claims which had been assigned to him. His attorney, Mr Engle, made a contract with him, by which he was to receive for his services 20 per cent. of the amount recovered. To secure Mr. Engle, plaintiff assigned to him his interest in the suit. Of this assignment the defendants had notice. Subsequently plaintiff and defendants settled the suit, and signed a stipulation setting forth that the claims had been settled and satisfied, and consenting to a dismissal of the case without costs, and directing the clerk of the court to enter an order to that effect. This stipulation was filed in the case. The defendants retained in their hands sufficient to pay Mr. Engle. They neither tendered the amount nor paid it into court. Mr. Engle claimed the right to proceed to the trial of the cause, notwithstanding the stipulation. The court allowed the case to proceed. Mr. Engle was sworn, and testified to the arrangement, and that, besides the 20 per cent. due him, he had advanced $4 for clerk's fees. Defendant Hyland was sworn, denying that he was ever notified of the assignment of the entire claim to Mr. Engle, but admitting that he had notice of his lien of 20 per cent. At the close of the testimony Mr. Engle moved for judgment, which the court denied, holding that the case was discontinued by the stipulation.

1. While the order of the court was not in the usual form of a judgment against the plaintiff, yet we think it was in effect a final judgment and determination of the plaintiff's claim, and that the case was properly brought into this court by a writ of error.

2. The amount due from the defendants to the plaintiff was admitted. They settled it, and paid to the plaintiff all but the amount due the attorney. We think this case is ruled by Weeks v Wayne Circuit Judges, 73 Mich. 256, 41 N.W. 269, and the authorities there cited. Plaintiff was entitled to judgment for the amount...