City of Barnsdall v. Curnutt
| Decision Date | 04 December 1945 |
| Docket Number | 31833. |
| Citation | 174 P.2d 596,198 Okla. 3,1945 OK 327,1945 OK 328 |
| Parties | CITY OF BARNSDALL v. CURNUTT. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 16, 1946.
Second Petition for Rehearing Denied Nov. 26, 1946.
Appeal from District Court, Osage County; Hugh C. Jones, Judge.
Action by the City of Barnsdall against the Cities Service Oil Company for damages for polluting water supply wherein Mabel Curnutt, administratrix of the estate of H. M. Curnutt deceased, intervened for purpose of enforcing an attorney's lien. From a judgment for the intervenor enforcing an attorney's lien, the plaintiff appeals.
Affirmed as reformed.
On Rehearing.
Syllabus by the Court.
1. An action to enforce an attorney's lien based on the compromise and settlement of litigation is of equitable cognizance and triable to the court without a jury.
2. An action to enforce an attorney's lien based on compromise of litigation is an action of equitable cognizance and unless the judgment is clearly against the weight of the evidence, same will not be disturbed on appeal.
3. Where an attorney employed on a contingent basis dies before a final adjudication or settlement has been had, his estate will be allowed to recover the reasonable value of the services rendered by him upon the subsequent successful termination of the litigation in the client's favor.
Frank T. McCoy, John T. Craig, and John R. Pearson, all of Pawhuska, for plaintiff in error.
Jesse J. Worten, of Pawhuska, for defendant in error.
This is an appeal from the District Court of Osage County wherein the defendant in error, Mabel Curnutt, administratrix of the estate of H. M. Curnutt, deceased, hereinafter called intervenor, obtained a judgment against the plaintiff in error, hereafter called plaintiff, enforcing an attorney's lien.
We find from the record that on January 25, 1941 the plaintiff by written contract employed H. M. Curnutt as its attorney to investigate and determine who was polluting the water supply of plaintiff and bring action for damages and to restrain further pollution. For his services H. M. Curnutt was to receive 40% of the sum recovered either by compromise or prosecution of action to conclusion.
H. M Curnutt commenced investigation and in August, 1941, the Cities Service Oil Company made a tentative offer of $25,000 in settlement, which was declined by plaintiff. On September 8, 1941 H. M. Curnutt filed petition for damage for plaintiff against Cities Service Oil Company and two of its employees for $253,000 damages, endorsed with his name and 'Attorney's Lien Claimed'. On September 21, 1941 Curnutt died. On October 7, 1941 the intervenor and her attorney appeared before the city council of the plaintiff and requested that the employment contract be completed by her attorney. On October 13, 1941 the intervenor addressed a letter to the plaintiff reciting the prior visit, the purpose thereof, and that $10,000 was claimed as an attorney's fee for services under the contract. By letter of same date the plaintiff advised intervenor other attorneys had been procured and to turn over all exhibits, files and evidence. This was done. The claim of intervenor was denied by plaintiff.
The attorneys employed to succeed Curnutt in the litigation are the same attorneys now representing the plaintiff in the present contest.
On May 25, 1943 the action was settled for $35,000, paid by Cities Service Oil Company and Cities Service Gas Company and that amount, by agreement of plaintiff and defendants and by order of the court, was paid to the court clerk to be held for the plaintiff subject to the attorney's lien claims of McCoy, Craig and Pearson, attorneys for plaintiff and of the personal representative of H. M. Curnutt, deceased, and the cause dismissed with prejudice. The court clerk disbursed $10,500 to plaintiff's attorneys, held $10,000 to await the order of the court, and paid the balance to the plaintiff.
On June 11, 1943 the intervenor filed petition in intervention in the case substantially alleging the above facts and further stating $25,000 of the amount secured was the result of the efforts of H. M. Curnutt prior to his decease and that $10,000 was a fair, just and reasonable fee under the contract. The intervenor prayed that the court direct the court clerk to disburse the $10,000 to intervenor for the purpose of discharging the 'lien claim of the said H. M. Curnutt upon the funds realized from the settlement of said cause.'
Preliminary motions and demurrer were filed and disposed of. Plaintiff filed its answer alleging H. M. Curnutt failed to properly protect the plaintiff's interest by investigation, securing of evidence and preparation and filing of petition; that the employment contract was thereby breached, and was terminated by death; that plaintiff had to employ other attorneys to complete the litigation and pay 30% of the recovery or $10,500 to these attorneys; that the petition had to be amended and further investigation made; that intervenor was entitled to a reasonable fee of $1,000 for the services of H. M. Curnutt. Intervenor filed reply denying generally those allegations of plaintiff inconsistent with petition in intervention and denying any acts of carelessness detrimental to interests of plaintiff.
The court on application of the intervenor and over the objection of the plaintiff found that the matter was an equity case to be tried to the court without the intervention of a jury. Upon the trial of the cause evidence of the parties was heard and the trial court determined the issues in favor of the intervenor, finding that H. M. Curnutt prior to his death had earned the sum of $10,000 under the contract of employment and directing the court clerk to pay to intervenor the $10,000 being held by him. From this judgment plaintiff has appealed.
The plaintiff complains of the trial court's refusal to submit the issues to a jury.
Title 5 O.S.1941 § 6 reads as follows: 'From the commencement of an action, or from the filing of an answer containing a counterclaim, the attorney who represents the party in whose behalf such pleading is filed shall, to the extent hereinafter specified, have a lien upon his client's cause of action or counterclaim, and same shall attach to any verdict, report, decision, finding or judgment in his client's favor; and the proceeds thereof, wherever found, shall be subject to such lien, and no settlement between the parties without the approval of the attorney shall affect or destroy such lien, provided such attorney serves notice upon the defendant or defendants, or proposed defendant or defendants, in which he shall set forth the nature of the lien he claims and the extent thereof; and said lien shall take effect from and after the service of such notice, but such notice shall not be necessary provided such attorney has filed such pleading in a court of record, and endorsed thereon his name, together with the words 'Lien claimed."
In the present case intervenor does not ask a personal judgment against the plaintiff but seeks under the above statute the enforcement of a lien upon the fund remaining in the court clerk's hands from the proceeds of the settlement of the cause of action of plaintiff.
In Callahan v. Cowley & Riddle, 117 Okl. 58, 245 P. 48, 49, we said concerning the above section and following related sections: '* * * Thus, the purpose of said sections is to create such lien analogous to liens created by statute, the better to secure laborers and other employees, and to create a certain liability of the adverse party for a fee. * * *' See, also, Lashley v. Moore, 112 Okl. 198, 240 P. 704; State ex rel. Mothersead v. Dyer, 126 Okl. 260, 259 P. 212.
The question as to the nature of the action or proceeding to secure benefits under 5 O.S.1941 §§ 6-10, has been the subject of a number of decisions by this court. In Jones v. Ralls, 152 Okl. 95, 3 P.2d 665, we said in paragraph one of the syllabus: 'An action to enforce an attorney's lien, based upon compromise of litigation without notice to attorney, is an equitable action, and, unless the judgment is clearly against the weight of the evidence, same will not be disturbed on appeal.'
In Boulding v. Slick, 161 Okl. 189, 17 P.2d 391, 392, we stated in the fourth paragraph of the syllabus: 'An action by an attorney to enforce an attorney's lien against a party to an action or proposed action whose interest is adverse to the client contracting with the attorney, based on a compromise or settlement of litigation without notice to the attorney, is an equitable action.' See, also, Simpson v. Baker, 123 Okl. 118, 252 P. 834; Sterling Milk Products Co. v. Brown, 146 Okl. 302, 294 P. 117; McArthur v. Lotridge, 177 Okl. 184, 58 P.2d 326.
The case of Wolfe v. Campbell, 107 Okl. 112, 230 P. 506, is cited in plaintiff's brief. Under the facts in that case the plaintiff had no contract or agreement for a fixed or contingent fee giving a lien upon the subject of the action and in addition did not elect to proceed under the statutes under consideration in the above cited cases. The plaintiff was appealing solely to the equity powers of the court to impress any judgment he might recover as a lien upon the defendant's property. The decision is not in point here.
Plaintiff also cites Western States Oil & Land Co. v. Helms, 143 Okl. 206, 288 P. 964, 72 A.L.R. 357. In the cited case the parties without objection submitted the cause to a jury and the statement with reference to the cause being triable to a jury was not necessary to the decision. The statement is obiter dictum and is disapproved.
Plaintiff also contends in connection with the question of the equity or law aspect of...
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