Ellis v. Frawley

• Decision Date: 13 February 1917
• Citation: 161 N.W. 364,165 Wis. 381
• Parties: ELLIS v. FRAWLEY ET AL.
• Court: Wisconsin Supreme Court

165 Wis. 381

161 N.W. 364

ELLIS

v.FRAWLEY ET AL.

Supreme Court of Wisconsin.

Feb. 13, 1917.

Appeal from Circuit Court, Eau Claire County; E. Ray Stevens, Judge.

Action by L. Olson Ellis against William H. Frawley and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with direction to dismiss the complaint on the merits.

Action for an accounting and settlement of the affairs of a joint business venture or partnership. The plaintiff is a lawyer residing and practicing at Black River Falls; the defendants are lawyers residing and practicing at Eau Claire. In October, 1911, a destructive flood occurred in the Black river by which much private and public property was destroyed in the city of Black River Falls. It was claimed generally that the flood resulted from the negligence of the La Crosse Water Power Company in the operation of its dam across said river. The complaint charged that in April, 1912, the plaintiff and defendants made a partnership agreement by which they were to act jointly as attorneys in prosecuting claims for all persons who might employ them to sue for and collect their claims against the power company arising out of said flood, and that in pursuance of that agreement the partnership brought suits for a large number of such claimants and performed professional services in such suits and finally effected a settlement of such claims for a large sum of money, and that the defendants received in payment for such partnership services more than $20,000, of which one-half belongs to the plaintiff; but that said defendants refuse to pay the plaintiff any part thereof. The defendants denied the existence of any such partnership. The action was tried by the court without a jury, and the court found that no partnership was formed, but “that plaintiff at the request of the defendants rendered services to the defendants in inducing flood sufferers to retain the defendants to prosecute their claims and in procuring assignments of such claims, that he continued to render services to the defendants during the years 1912 and 1913 with reference to the losses sustained and claims made by such flood sufferers which defendants were seeking to recover through actions brought by them acting as attorneys for such flood sufferers”; also, “that said services rendered by the plaintiff to the defendants at their special instance and request are reasonably worth the sum of $975.” There is no bill of exceptions. The defendants appeal from judgment against them in accordance with the findings.Frawley & Frawley, and Bundy & Wilcox, all of Eau Claire (Sturdevant & Farr, of Eau Claire, of counsel), for appellants.

R. J. McBride, of Neillsville, for respondent.

WINSLOW, C. J. (after stating the facts as above).

[1] There being no bill of exceptions, the only inquiry presented is whether, upon the facts found by the trial court, the judgment is right. Those facts are: A firm of lawyers requested another lawyer to go around among the flood sufferers and persuade them to employ the firm to prosecute their damage claims and to execute assignments of their claims to one person for the purpose of facilitating the litigation; the second lawyer undertook the task, was successful in his work, and has recovered the value thereof.

[2] The judgment is right unless the arrangement between the parties was against public policy; if it was, the judgment is wrong and must be reversed, even though the objection be now made for the first time. Jacobson v. Bentzler, 127 Wis. 566, 107 N. W. 7, 4 L. R. A. (N. S.) 1151, 115 Am. St. Rep. 1052, 7 Ann. Cas. 633. The court will not allow itself to be used as the means of carrying into effect a contract which is essentially contrary to morality or to public policy, even though no objection be made by the parties. Wight v. Rindskopf, 43 Wis. 344. It seems that the arrangement was clearly against public policy.

[3] The mere intermeddler, the officious stirrer up of litigation in which he has no interest save the possibility of a commission or a fee, has been condemned by courts and legislators since the earliest times. This is so because the practice of the law is not a trade but a ministry.

Chief Justice Ryan well said in his eloquent address before the graduating law class of the University of Wisconsin for 1873:

“The pursuit of the legal profession for the mere wages of life is a mistake alike of the means and the end. It is a total failure of appreciation of the character of the profession. This is the true ambition of a lawyer. To obey God in the service of society; to fulfill His law in the order of society; to promote His order in the subordination of society to its own law, adopted under His authority; to minister to His justice, by the nearest approach to it, under the municipal law, which human intelligence and conscience can accomplish. To serve man, by diligent study and true counsel of the municipal law; to aid in solving the questions and guiding the business of...