Enos v. Keating

• Court: Wyoming Supreme Court
• Writing for the Court: RINER, Justice.
• Citation: Enos v. Keating, 39 Wyo. 217, 271 P. 6 (Wyo. 1928)
• Decision Date: 16 October 1928
• Docket Number: 1409
• Parties: ENOS, ET AL. v. KEATING [*]

271 P. 6

39 Wyo. 217

ENOS, ET AL. v. KEATING ^[*]

No. 1409

Supreme Court of Wyoming

October 16, 1928

Rehearing Denied March 12, 1929, Reported at: 39 Wyo. 217 at 238.

APPEAL from District Court, Fremont County; BRYANT S. CROMER, Judge.

Action by James Enos against Henry Keating. Plaintiff's attorneys, A. C. Allen and O. N. Gibson, moved to strike plaintiff's motion to dismiss which was denied by order dismissing without prejudice. From which said order attorneys and plaintiff appeal.

Affirmed.

A. C Allen and O. N. Gibson for appellants.

Counsel for plaintiffs made an agreement with their client for contingent compensation for their services in prosecuting the action, which was one for the recovery of property conveyed by plaintiff during his minority, plaintiff being an Indian. Counsel thereupon gave notice of a lien upon the subject matter of the suit and sought judgment thereon. On the day of hearing, defendant's counsel filed an application for dismissal which was followed by the motion here in controversy. The employment contract was in the nature of a partial equitable assignment of the subject matter of the action, and the cause was not dismissable without the consent of the assignees. A cause of action for the cancellation of a conveyance on grounds of fraud, and minority is assignable. 5559, 5748 C. S. 5 C. J. 850, 891. The employment contract was a partial equitable assignment of, or an equitable lien upon, the cause of action, 2 Am. & Eng. Ency. of Law, 2nd Ed 1055, 37 C. J. 308; Mackall v. Willoughby, 167 U.S. 689; Barnes v. Alexander, 232 U.S. 117; Bell v. County, 26 Colo. 141, 141 P. 861; Delval v. Gagnon, 213 Mass. 203, 99 N.E. 1095; R. R. Co. v. Judge, (Mich.) 48 N.W. 269; plaintiff cannot dismiss without the consent of the equitable assignees. 18 C. J. 1151; Helwig v. Wayne Circuit Judge, (Mich.) 48 N.W. 269, 30 Cyc. 43. An equitable assignee is entitled to have the action proceed in the name of the assignor or be substituted in his stead, as the equities of the case require, 5 C. J. 1005, 1006. Lowry v. Anderson, (Ohio) 48 N.E. 810; Reynolds v. Reynolds, (Nebr.) 7 N.W. 324; even where the attorney has neither a statutory nor contractual lien to secure his compensation, the Court will refuse to dismiss, if the application is made pursuant to a fraudulent agreement between plaintiff and defendant to deprive counsel of compensation. 2 R. C. L. 1002; Jackson v. Stearns, 84 P. 800; Falconio v. Larsen, (Ore.) 48 P. 703; Potter v. Co., (Utah) 57 P. 270; Fischer-Hansen v. Co., 71 N.Y.S. 513; Jones v. Morgan, 39 Ga. 310; Smith v. Young, 62 Ill. 211. Until acted upon, an application to dismiss with prejudice, unsupported by consideration, or acts constituting estoppel, may be withdrawn, 18 C. J. 1170; Ex-Parte Johnson, (Ala.) 69 So. 603. If this were a motion to set aside the motion and reinstate the cause, the trial court would be obliged to hear the case in support of the motion. Doss v. Tyack, 14 L.Ed. 428; Power Co. v. Rossman, 122 Minn. 355, 142 N.W. 818; Abbott v. Abbott, 18 Nebr. 503, 26 N.W. 361; Mullen v. Noah, 166 P. 742; Harjo v. Black, 153 P. 1137; Bangs v. Sullivan, (Tex.) 73 S.W. 74. An agreement between an attorney and client that the attorney shall have a lien upon the judgment constitutes a valid equitable assignment and attaches to the judgment as soon as entered, 6 C. J. 769; Ingersoll v. Coram, 29 S.Ct. 92; Anderson v. Oil Company, (Wyo.) 243 P. 394. After such assignment the plaintiff is powerless to dismiss without the consent of the assignee, 5 C. J. 999; 18 C. J. 1151; Jackson v. Stearns, 84 P. 800.

M. C. Burk, for respondent.

The agreement did not give plaintiff's counsel any legal or equitable interest in the cause of action, 6 C. J. 742. It contains no stipulation to that effect, Boyle v. Boyle, 116 F. 764; Holmes v. Bell, 96 N.E. 1094. The cause of action remained in plaintiff, Witter v. Jersey City, 68 N. J. Equity 659. There can be no assignment without an express stipulation to that effect, 4 Cyc. L. & P. 990, 4576 C. S.; Kusterer v. Brown, 56 Wis. 471, 14 L. R. A. (N. S.) 1095. Plaintiff had a right to refuse to proceed with the action under the amended petition and to dismiss the cause and dismiss his counsel. The right to file a bill in equity for the cancellation of a conveyance is not assignable: 5 C. J. 892, 2 R. C. L. 611; Whitney v. Kelley, 29 P. 64; Sanborn v. Doe, 28 P. 105; Graber v. Dakin, 23 P. 858, 5 C. J. 891. A legislative act changing the rule as to survivor does not change the rule as to assignability, Blake v. Griswold, 11 N.E. 137. The assignment was void on grounds of public policy, 5 C. J. 891. An equitable lien never existed until after judgment, 6 C. J. 766. Counsel may not bring an action for cancellation of the conveyance because it is not assignable, Stearnes v. Wollenberg, 92 P. 1079. The judgment of the lower court should be sustained and costs taxed to the movants in view of the fact that the plaintiff did not authorize the appeal.

RINER, Justice. KIMBALL, J., and METZ, District Judge, concur.

OPINION

RINER, Justice.

This cause has heretofore been before this court, being considered and an opinion being filed on motion to dismiss, 36 Wyo. 318, 255 P. 1. The motion was denied under the rule that, "the court will not assume, ordinarily, to decide the merits of the cause upon a motion to dismiss an appeal or proceeding in error." It will, therefore, not be here necessary to restate the nature of the case, as that is very fully set out in the opinion above mentioned. Such parts of the record as may be needful, supplementary to the statement of facts contained in that opinion, will only be used.

To obtain a reversal of the order of the trial court under review, it is argued that the contract of employment entered into between Enos and his counsel constituted either a partial equitable assignment or an equitable lien upon the alleged cause of action vested in Enos. The verbatim language of the agreement signed by the latter as regards compensation of the attorneys is as follows:

"I hereby stipulate and agree that you may retain as and for your compensation, one-half of all sums of money which you may collect on my behalf, or one-half of all the property hereinabove described which you may recover on my behalf, with such costs as may be awarded in any action instituted by you on my behalf, and I further stipulate and agree that for all your services performed by you as my attorneys, in my capacity as client, you shall be entitled to receive and retain the reasonable value of your services, not exceeding, however, one-half of the moneys or the land which you may recover.

"It is understood that you shall be entitled to receive compensation only out of any moneys or lands which you may recover or secure for me personally."

Obviously this contract, by its terms, does not undertake to establish a lien upon, nor does it purport to be an assignment of, the cause of action involved in the suit; It is merely a contingent fee contract for services of counsel in the proposed action. That action, if successful, would simply have revested the title to the land in Enos; it would not have secured a money judgment. At the time Enos severed his connection with counsel, the agreement was purely an executory one, so far as the procurement of a judgment was concerned. In 6 C. J. 742, Sec. 317, upon very considerable authority cited in the appended notes, it is said:

"An executory agreement between a client and his attorney that the attorney shall receive a certain portion of what is recovered will not, it has generally been held, give the attorney any legal or equitable interest in the cause of action or claim, unless there is an express stipulation to that effect."

In Spellman v. Bankers' Trust Co., 6 F.2d 799 (C. C. A.2d Cir.), where an attorney sued, claiming to be an equitable assignee of a part of an estate, by virtue of a contingent fee contract with a claimant of the said estate--the widow of the deceased owner thereof, it was said:

"But it is argued that the appellant is an equitable assignee by virtue of this agreement. A contingent fee agreement does not constitute a legal assignment. Here the claim is that the equitable assignment arises by virtue of a phrase that the widow assigns to the plaintiff a one-half interest in and to all her right, title and claim, etc. There is no actual assignment or transfer of the widow's interest. * * * An agreement to pay a certain sum out of that which one is entitled to receive from a designated fund, when received, does not operate as a legal or equitable assignment, since the assignor in either case retains control of the subject-matter. Whether the debtor would be justified in paying the debt, or the portion contracted about, to the person claiming to be the assignee, is the test. Fairbanks v. Sargent, 117 N.Y. 320, 22 N.E. 1039, 6 L. R. A. 475. And to pay a debt out of a designated fund does not give an equitable lien upon the fund, or operate as an equitable assignment thereof. Thomas v. N. Y. & Greenwood Lake Ry. Co., 139 N.Y. 163, 34 N.E. 877."

In Wheeler v. Fronhoff, (Tex. Civ. App.) 270 S.W. 887, where the agreement was that the appellants "are to have one-third of any sum of money or property, or both or either, that may be recovered or paid as a compromise of said suit for their services therein," and it was claimed that this arrangement transferred to appellants an interest in the cause of action and in the subject matter of the suit, the court said:

"That language, it seems to us, should not be construed as evidencing an intention that title to an interest in the property or cause of action therefor was thereby and then to pass to appellants, and it is plain under the authorities that...