Chowning v. Ledbetter
| Decision Date | 27 June 1922 |
| Docket Number | Case Number: 10338 |
| Citation | 1922 OK 224,208 P. 829,86 Okla. 269 |
| Parties | CHOWNING v. LEDBETTER. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error -- Harmless Error -- Rulings on Evidence.
If, after an examination of the entire record, it does not appear that the errors complained of, and being based upon misdirection of the jury or the improper admission or rejection of evidence, have probably resulted in a miscarriage of justice or do not constitute a violation of any constitutional or statutory right, said cause will not be reversed for such errors.
2. Attorney and Client -- Action for Fees Against Party Compromising With Client--Statute.
In a suit seeking to recover reasonable compensation for his services in a former suit by an attorney against several parties who were defendants in the former suit in which said attorney was employed, for the reason that said defendants had compromised and procured a dismissal of said suit with the attorney's client without notice to said attorney and without his consent, where, upon a trial of said cause the undisputed evidence developed that three of the defendants had nothing to do with the settlement of said former suit, and the suit by said attorney was dismissed as to them, but judgment in favor of said plaintiff, attorney, for full compensation was procured against the defendant who negotiated the settlement and secured the dismissal of the suit, such dismissal of said defendants gave no ground for complaint or plea of error by such compromising defendant because of such dismissal nor by reason of the attorney securing judgment against the said compromising defendant for the full amount of the reasonable compensation for his services in the original suit; since, under section 249, Rev. Laws 1910, the party settling or compromising is the one who is liable to the attorney for the reasonable compensation for services performed in connection with said former action.
Error from District Court, Carter County; W. F. Freeman, Judge.
Action by H. A. Ledbetter against R. H. Chowning and others, to recover for services as attorney. Judgment for plaintiff, and defendant Chowning brings error. Affirmed.
Charles A. Coakley and Thos. Norman, Jr., for plaintiff in error.
H. M. Furman, R. H. Ledbetter, Ledbetter, Stuart & Bell, and Cruce, Potter & Cruce, for defendant in error.
¶1 This suit was commenced in the district court of Carter county by H. A. Ledbetter on the 12th day of January, 1917, against R. H. Chowning, J. E. Crosby, James P. Little, and W. H. Harrison, wherein H. A. Ledbetter alleged he was employed under a written contract during the year 1915, to represent one Atchison Hickman in a suit filed by the said Hickman against the above named defendants, which suit was for the purpose of canceling of record certain deeds, oil and gas leases, and other conveyances affecting the lands of said Hickman, and which contract of employment was regularly recorded in the office of the county clerk of Carter county, and that thereafter said Ledbetter in pursuance of the obligations and duties due the said Atchison Hickman under and by virtue of said written contract, prepared the pleadings and filed said suit in the district court of Carter county, Okla., and on the petition filed made the following indorsements:
¶2 Under said contract of employment the said Ledbetter was to receive 33 1-3 per cent. of the value of the land, together with one-third of all the oil produced and saved therefrom and recovered in said court. The plaintiff claimed the reasonable value of his services rendered to have been in the sum of $ 15,000, and that afterwards, and without the knowledge or consent of H. A. Ledbetter, the defendants entered into negotiations with the said Atchison Hickman and settled with him and without the consent of Ledbetter dismissed said suit with prejudice as to all the defendants.
¶3 The defendants filed demurrers, and also a motion to strike. The motion and demurrers were overruled by the court, and defendants filed answers. The cause proceeded to trial before a jury, and after the introduction of evidence and the instructions of the court the jury returned a verdict in favor of H. A. Ledbetter and against R. A. Chowning in the sum of $ 5,000.
¶4 The suit as to J. E. Crosby was dismissed prior to the verdict by H. A. Ledbetter, and the court instructed a verdict, which was returned by the jury, in favor of Little and Harrison.
¶5 It appears that Crosby's interest and the interests of Little and Harrison were in the form of oil leases taken from Atchison Hickman prior to the time that Hickman had conveyed his interests in said land and oil royalties to R. H. Chowning. The suit by Hickman against the four defendants, and in which Ledbetter represented him as attorney, had for its purpose the cancellation of the conveyance by Hickman to Chowning of the fee and oil royalties and also of the leases owned and claimed by Crosby, Little, and Harrison.
¶6 The defendant, R. H. Chowning, filed a motion for a new trial, same was overruled, and whereupon Chowning gave notice of appeal, and appeal is now lodged in this court.
¶7 The journal entry of the court overruling the motion for a new trial rendered personal judgment in the sum of $ 5,000 in favor of H. A. Ledbetter against R. H. Chowning, and at the same time declared a lien to secure the payment of said judgment to exist in favor of H. A. Ledbetter upon the interest of Chowning, which interest was defined in the journal entry to be the fee-simple title in the land and a one-eighth royalty interest in all oil produced under the leases; and foreclosed said lien, and directing the sale of the interest of the said Chowning in and to said lands and oil interests in the event said judgment was not paid, for the purposes of satisfying said judgment.
¶8 In the trial of said cause, H. A. Ledbetter introduced witnesses to prove the reasonable value of his services. Among those witnesses were certain attorneys who testified the services rendered by Ledbetter in said suit were of the value of $ 5,000. The nature of the services rendered to Atchison Hickman in the filing of said suit and preparation of same was also testified to by Ledbetter in the suit. There were also witnesses introduced by Ledbetter testifying that the value of the property involved was from $ 150,000 to $ 200,000, based upon a production of 100 barrels of oil per day. The introduction of this proof was objected to by the defendant for the reason that no proofs had been offered showing this or any other amount or production. This proof was permitted upon promise of Ledbetter to make proof of the production. The proofs that were introduced afterwards as to production consisted in this: That there were developed eight producing wells on the property; but there nowhere appears in the record any proofs as to how much the production was. It does not appear in the record that this evidence based upon the 50 to 100 barrel production was requested to be withdrawn from the jury. There was also proof that the property without production, but by reason of its proximity to production, was worth from $ 40,000 to $ 50,000.
¶9 The defendant below, R. H. Chowning, will hereinafter be referred to as plaintiff in error, and H. A. Ledbetter, plaintiff below, will hereinafter be referred to as defendant in error.
¶10 The errors complained of are discussed by the plaintiff in error under five propositions, and we will take them up in their order and dispose of them as follows: The first proposition covering the assignments of error is that the court committed error in the giving of instruction No. 5, and because the court failed in said instruction to limit the amount of recovery to one-third of the fee fixed in the contract of employment, which was fixed at one-third of the value of the property. Said instruction reads as follows:
"In determining the value of the services of the said H. A. Ledbetter, you are instructed that it is your duty to consider his ability, standing, and experience, and his reputation as an attorney in the prosecution of actions of the kind disclosed by the evidence, and you are further instructed to consider the nature of the controversy, the questions involved therein, necessity of his services, the importance of the litigation, the value of the property involved, the time and labor expended by him under his contract of employment, together with investigations made by him on the legal questions involved, and from the consideration of all the evidence introduced in this case, it is your duty to return a verdict in favor of the plaintiff, for an amount in your judgment which will be reasonable compensation for services performed by him in connection with the action brought under his contract of employment, not to exceed $ 15,000."
¶11 We think that this instruction gives a correct rule for arriving at the amount of plaintiff's recovery. The pertinent section of our statute bearing upon this question is section 249, Rev. Laws 1910, and reads as follows:
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