Deverell v. Eagle-Picher Lead Co.

• Decision Date: 26 December 1939
• Docket Number: No. 6103.,6103.
• Citation: 137 S.W.2d 473
• Parties: DEVERELL et al. v. EAGLE-PICHER LEAD CO. et al.
• Court: Missouri Court of Appeals

137 S.W.2d 473

DEVERELL et al. v. EAGLE-PICHER LEAD CO. et al.

No. 6103.

Springfield Court of Appeals. Missouri.

December 26, 1939.

Error to Circuit Court, Barton County; Thos. W. Martin, Judge.

"Not to be published in State Reports."

Suit by Louis N. Wolf, attorney's lien claimant, to enforce a statutory lien for an attorney on proceeds of settlements and judgments based on actions instituted by John Deverell and Jesse Tando against the Eagle-Picher Lead Company, a corporation. To review a judgment establishing an attorney's lien against John Deverell and the Eagle-Picher Lead Company, Louis N. Wolf brings error. On motion to dismiss writ of error, or to affirm judgment.

Writ of error dismissed.

Louis N. Wolf, pro se., of Joplin, for plaintiff in error.

George E. Phelps and McReynolds & Flanigan, all of Carthage, and Foulke & Foulke, of Joplin, for defendant in error.

FULBRIGHT, Judge.

This is a proceeding to determine the right and interest of Louis N. Wolf, an attorney, in the proceeds of certain settlements and judgments based on original actions instituted by John Deverell and Jesse Tando, in the Circuit Court of Jasper County, Missouri, against The Eagle-Picher Lead Company to recover for injuries alleged to have been the result of the negligence of the defendant company while the plaintiffs were in its employ. The suits were filed on January 27th, and March 5th, 1936, respectively.

Thereafter, each of the plaintiffs filed application for a change of venue. Change in the Deverell case was granted October 31st, 1936, and the Tando case December 5th, 1936, and each was transferred to the Circuit Court of Barton County.

On April 11th, 1938, the law firm of Foulke & Foulke entered its appearance as counsel for plaintiff in each case. April 30th, 1938, in vacation, a stipulation was entered into between John Deverell, plaintiff, and the defendant, which, omitting caption and signatures, is as follows:

"Now come John Deverell, plaintiff in the above entitled cause, and his attorney, Emerson Foulke, and the defendants, The Eagle-Picher Lead Company, a corporation, and J. Edward Webb, Leonard Vaughn, Leslie Thomas and Ray Webb, by their attorneys, McReynolds & Flanigan and A. C. Wallace, and hereby stipulate and agree that the said plaintiff shall have and recover a judgment in the sum of $600.00 and same shall be entered up against said defendants.

"The said plaintiff acknowledges receipt and payment of said judgment in full and authorizes the Clerk of this Court to enter satisfaction in open court in said cause of the judgment on the records of this court, upon the payment of the costs in this action by defendants.

"It is further understood and agreed between the parties hereto that the defendants have paid to plaintiff the sum of $400.00 in cash and have paid to the Clerk of this court the sum of $200.00, which said sum of $200.00 is to be held and retained by the Clerk of this Court until such time as the Court shall have ascertained and determined what amount, if any, may be due to Louis N. Wolf, an attorney at law, on account of his having originally instituted suit on behalf of this plaintiff. It is further stipulated and agreed that the $200.00 deposited with the Clerk of the Court shall be paid out by said Clerk under orders of the Court and in keeping with such findings as the Court may make as to the rights of the plaintiff and Louis N. Wolf to said sum."

Afterwards, on May 2nd, 1938, and during the April Term, 1938 of the Circuit Court of Barton County, John Deverell, plaintiff, filed his petition to determine attorney's lien, alleging in substance, that prior to the institution of this suit he employed, by contract in writing, Louis N. Wolf, an attorney, to represent him; that Wolf retained the only copy of said contract, the contents of which plaintiff is unable to state; that said Wolf represented him until about the 7th day of April, 1938, when plaintiff notified him, in writing and orally, that he was discharging him as attorney and intended to employ another attorney to further prosecute this action; he further alleged that he had good cause for discharging Wolf, in that Wolf had misrepresented to him the status and progress of the litigation and as to negotiations for settlement; that he then employed Emerson Foulke, an attorney, to represent him, and through him, negotiated a settlement in the sum of $600 and stipulated with defendant, through counsel, that judgment be entered in his favor for that amount; that $200 of the amount agreed upon as a settlement remains unpaid, subject to determine what rights, if any, of the said Louis N. Wolf, in the proceeds thereof. Plaintiff prays the court to find that he had good and justifiable cause for discharging Wolf as his attorney and that the said Wolf has no lien or interest in the settlement of this cause of action or the proceeds thereof.

On May 5th, 1938, and during the regular April Term, 1938, of said court, judgment was rendered pursuant to the stipulation heretofore set out.

Louis N. Wolf, lien claimant, then filed his petition, on May 7th, 1938, to set aside entry of satisfaction of judgment rendered, asking that his lien rights be determined, and thereafter, on May 23rd, 1938, he filed his second amended petition in which he alleged in substance, that John Deverell employed him, by contract in writing, to institute and prosecute the suit against The Eagle-Picher Lead Company, et al., and that he was to receive 50% of any and all sums recovered; that pursuant to the agreement he filed the suit, rendered valuable legal services, truthfully stated to plaintiff the status and progress of the litigation and of negotiations of settlement; that he notified The Eagle-Picher Lead Company in writing, of his employment and the terms thereof; that the stipulation of settlement of the claim heretofore set out was made without his knowledge or consent; that as a result of the action of defendant corporation in settling said action without his consent, petitioner was deprived of his lien as allowed by statute; that petitioner is entitled to recover of defendant the sum of $600. Wherefore, he prays that the release and satisfaction of the judgment be set aside and that execution in his favor and against the Eagle-Picher Lead Company, in the sum of $600 with interest, be issued.

Thereafter, The Eagle-Picher Lead Company, defendant, filed its answer to petitioner's application to set aside satisfaction of judgment and to determine lien rights, stating in substance, that on the ____ day of April, 1938, during the pendency of the suit, the firm of Foulke & Foulke, composed of W. H. and Emerson Foulke, appeared in open court, as did the plaintiff, and asked that the firm name of Foulke & Foulke be entered of record as attorneys for plaintiff in the place of Louis N. Wolf; that said law firm was, by the Circuit Court of Barton County, entered of record as attorneys for plaintiff and thereafter defendant, through its attorneys of record negotiated a settlement of said cause of action with plaintiff and his attorneys, Foulke & Foulke, and signed stipulation for said settlement and judgment thereon, to be entered of record; that under the settlement plaintiff was to receive $400 and $200 was to be deposited with the Clerk of the Circuit Court, to be apportioned to the attorneys of record as fees in said cause and in such amounts as to the court should seem meet and just; that said settlement was made in good faith at the request of plaintiff and his attorneys, Foulke & Foulke; that by reason of the court adding the name of Foulke & Foulke as attorneys of record, instead of substituting the same for the name of Louis N. Wolf, one third of the amount of the agreed compromise of $600 was deposited with the Clerk of the Circuit Court, to be paid upon the order of said court to the parties determined entitled thereto; that all said acts were performed by defendant in good faith; that satisfaction of the judgment should be allowed to stand.

An answer, in the nature of a general denial, was filed by Deverell to the amended petition of the lien claimant. The proceedings and pleadings in the Tando case are substantially the same, if not identical, as in the Deverell case, and the causes were tried together pursuant to a stipulation in writing that the proceedings in the cause of John Deverell, Plaintiff v. The Eagle-Picher Lead Co., a Corporation, et al., Defendants, No. 9626, be consolidated with a similar proceeding, Jesse Tando, Plaintiff, v. The Eagle-Picher Lead Co., a Corporation, et al., Defendants, No. 9645.

The court found the issues in favor of the petitioner, Louis N. Wolf and against the defendant, The Eagle-Picher Lead Company, a corporation, and against plaintiff, John Deverell and established an attorney's lien in favor of the said Louis N. Wolf and against the said Eagle-Picher Lead Company, a corporation, in the sum of $100, to be paid by the Clerk of this court, out of the funds in his hands and that the petitioner, Louis N. Wolf have and recover of the plaintiff John Deverell the costs of said attorney's lien proceedings and have therefor execution. A similar judgment was rendered in the Tando case. Motions for a new trial were filed by petitioner and by the court overruled.

On May 22nd, 1939, and within one year of the rendition of the judgments in the Circuit Court, plaintiff in error sued out a writ of error in each of said cases and the Springfield Court of Appeals, on said date by its order, directed that a writ of error be issued from this court to the Circuit Court of Barton County, which said writ of error was returnable to the October Term, 1939, of the Springfield Court of Appeals.

Although the finding of the chancellor is lengthy, in view of the nature and character of this proceeding, we set it out in full, as follows:

"The Court finds that the said Louis N. Wolf had a contract with the said John Deverell for an...