Franklin v. Local Finance Co.
| Citation | 136 S.W.2d 112,234 Mo.App. 973 |
| Parties | WALTER B. FRANKLIN, RESPONDENT, v. LOCAL FINANCE COMPANY, A CORPORATION, APPELLANT |
| Decision Date | 29 January 1940 |
| Court | Court of Appeals of Kansas |
Appeal from the Circuit Court of Jackson County.--Hon. John M Cleary, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Harry B. Jenkins and Walter A. Raymond for appellant.
(1) The motion to set aside the dismissal of this cause is wholly insufficient to state a cause of action for such relief as it shows on its face that the judgment was not final and affirmatively states no consideration was given by appellant for said dismissal. Mills v. Met. St. Ry. Co., 282 Mo. 118, 221 S.W. 1, l. c. 4, 5; Taylor v. St. L. Transit Co., 198 Mo. 715, 97 S.W. 155, l. c. 158; Petition of Elliott, Welker v. Wabash Ry. Co., 208 Mo.App. 348 234 S.W. 520, 522; Wabash Ry. Co. v. Elliott, 26 U.S. 457, 43 S.Ct. 406, 67 L.Ed. 743; Whitecotton v. St Louis & H. Ry. Co., 250 Mo. 624, 157 S.W. 776, l. c. 777; Noell v. Mo. P. R. Co., 335 Mo. 687, 74 S.W.2d 7, l. c. 11; Gerritzen v. Louisville & N. R. Co., 115 S.W.2d 44, l. c. 45; Noell v. Mo. P. R. Co., 335 Mo. 687, 74 S.W.2d 7, l. c. 12; Curtis v. Met. St. Ry. Co., 118 Mo.App. 341, 94 S.W. 762, l. c. 765; Sec. 774, R. S. Mo., 1929; Mo. Stat. Ann. sec. 774, P. 1010; Tiller v. Farmers' Mut. Fire Ins. Co., 220 Mo.App. 1337, 296 S.W. 464, l. c. 466; Globe American Corp. v. Miller Hatcheries (Mo. App.), 110 S.W.2d 393. (2) There was a total failure of proof in that there was not only no proof of any proceeds of the original cause of action but affirmative proof that there were no proceeds on which such alleged lien might attach. Schroer v. Brooks, 204 Mo.App. 567, 224 S.W. 53, l. c. 57; Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190, l. c. 193; State ex rel. and to Use of Wilkinson v. Central Surety & Ins. Corp. (Mo. App.), 112 S.W.2d 607, l. c. 610; Lane v. Nunn, 211 Mo.App. 280, 243 S.W. 427, l. c. 429; Mercantile-Commerce Bk. & Tr. Co. v. Meletio (Mo. App.), 84 S.W.2d 655, l. c. 658. (3) The court erred in allowing movants an attorney's lien to the extent of $ 375 as in no event would they be entitled to more than nominal damages, there being no evidence of the value of any consideration given by appellant for the dismissal. Hale v. Terminal R. R. Ass'n, 12 S.W. (2d 941, l. c. 942.
Brennan & Fraker, Redmond S. Brennan and Lloyd R. Fraker pro sese.
(1) The judgment of the circuit court should be affirmed because none of the alleged errors which appellant has assigned in its brief in this court were raised by it in its motion for a new trial. Mo. Gas & Electric Co. v. Rea & Page, 220 Mo.App. 1067, 279 S.W. 727; Elmore v. Cox, 9 S.W.2d 681; Stein v. Rainey, 315 Mo. 535, 286 S.W. 53; Koch v. Sanford, 220 Mo.App. 396, 286 S.W. 732; Killam v. Travelers, 127 S.W.2d 772; Gregory Bus Line v. Stephens, 223 Mo.App. 1036, 15 S.W.2d 910. (2) The judgment of the circuit court should be affirmed because the motion on which the judgment in this cause is based, is amply sufficient to support such judgment and the allegations thereof were admitted by appellant's failure to answer or attack such motion in any manner in the trial court. In re Atwell, 232 Mo.App. 186, 115 S.W.2d 527; Barthels v. Garrels, 206 Mo.App. 199, 227 S.W. 910; Bovard v. Bovard, 128 S.W.2d 274. (3) The judgment of the circuit court should be affirmed because appellant, in its motion for a new trial, did not complain that the judgment was excessive. Gregory Bus Line v. Stephens, 223 Mo.App. 1036, 15 S.W.2d 910; Glavis v. Old Gem Catering Co., 18 S.W.2d 564; Greer v. Carpenter, 19 S.W.2d 1046; Davis v. Hill Bros. Veneer Co., 20 S.W.2d 928; U. S. Feed Mills Co. v. Mo. P. R. Co., 36 S.W.2d 136.
This is an appeal from an order of the circuit court setting aside an order of dismissal of the cause of action wherein a judgment in favor of plaintiff for $ 750 had been had in the justice court, where the suit was originally filed, to the extent of $ 375, which was the amount of the lien claimed by the movants, Redmond S. Brennan and Lloyd R. Fraker, as attorneys for plaintiff.
On October 1, 1937, plaintiff entered into a written contract with Brennan and Fraker, attorneys and movants herein, to represent him in the prosecution of a suit against Local Finance Company, defendant herein, for "actual damages $ 612.50, punitive damages $ 137.50--$ 750," for conversion of certain personal property of the plaintiff. The plaintiff agreed to pay said attorneys, as compensation for their services, fifty per cent of whatever amount was obtained in "settlement of said claim either by suit or compromise." The contract further provided that "in case said first party shall settle or compromise said claim otherwise than through said attorneys, then said attorneys shall be entitled to a fee equal to that received by said first party, but said fee shall in no event be less than $ 100."
Said attorneys filed suit on behalf of plaintiff in the justice court of Gilbert P. Bourk, in Kaw Township, Jackson County, Missouri, seeking damages from defendant in the sum of $ 750 for the conversion of certain personal property set out in the petition. The petition was signed by Brennan and Fraker as attorneys for the plaintiff. Defendant was duly served with summons and thereafter, on the 16th day of November, 1937, a change of venue was granted upon the application of the defendant, and the cause was transferred to the justice court of Harry S. Davis, a justice of the peace in Kaw Township. The case was continued from time to time until December 29, 1937, on which date default judgment was rendered in favor of plaintiff in the sum of $ 750. Within the time allowed by law, defendant filed its affidavit and recognizance for appeal which was allowed to the circuit court of Jackson County at Kansas City.
Time for serving notice of this appeal would not expire until ten days before the first day of the May, 1938, term of the circuit court. Plaintiff's attorneys, movants herein, did nothing more about this suit until after the time for serving notice of the appeal had expired. Some time within the first week of May, 1938, plaintiff's attorney Fraker called defendant's attorney Jenkins by telephone, stating that inasmuch as no notice of appeal had been served in the case he wanted the defendant to pay the judgment promptly, and upon defendant's refusal so to do he would file motion to affirm the same. Mr. Jenkins stated that he would look into the matter and let him know about it.
On May 11, 1938, Mr. Jenkins wrote Mr. Fraker a letter, in which he stated that on January 6, 1938, the plaintiff and plaintiff's daughter and Mr. Juett, an officer of the defendant company, came to his office and stated that they had reached an agreement to settle the case on the following basis: that the defendant was
Jenkins, in his letter, stated that he inquired of the plaintiff Franklin if he had taken the matter up with his attorneys and he stated that he had discussed it and that his attorneys knew all about it and had said to have him (Jenkins) draw he releases; that Jenkins was at the time engaged in a trial and had only a few minutes at his office; that although he tried, he was unable to get in touch with Fraker by telephone and that he dictated the release and a stipulation to dismiss and left his office; that his secretary completed the papers and turned them over to Mr. Juett who had them signed; that he had directed Juett that if the matter was closed up he should file his stipulation to dismiss and pay the costs; that he (Jenkins) had called Juett that morning (May 11, 1938) and that Juett stated that he had neglected to file the dismissal but was going to do so that day. He stated further, "My information is that Franklin still has the automobile and has been making his payments regular to the Local Finance Company."
The evidence showed that plaintiff's attorneys had not contacted their client since the date that default judgment was entered in the justice court, and further that until receipt of the letter from Mr. Jenkins they knew nothing of any settlement between their client and the defendant.
Plaintiff's counsel had filed a motion to dismiss the appeal just previous to the receipt of the letter from Mr. Jenkins advising them as to the settlement of the case. On May 11, the same day the letter was written, the stipulation for dismissal was filed by the defendant. Immediately after receipt of Mr. Jenkins' letter of May 11, plaintiff's attorneys withdrew their motion to dismiss the appeal, and on May 13, 1938. plaintiff's attorneys filed in said cause their motion to set aside the order of dismissal "to the extent of their lien thereon in the sum of $ 375, and to award them an execution in said sum against the defendant."
On May 24, 1938, the motion came on for hearing before the court, both parties appearing, and the court having heard the evidence, found the issues in favor of the movants and made an order sustaining their motion and allowing the movants, as attorneys for plaintiff, the sum of $ 375 to be recovered, together with costs, of the defendant upon execution. Defendant, in due time, filed its motions for new trial and in arrest of judgment, which motions were thereafter duly heard and overruled, and defendant has now duly prosecuted this appeal.
We shall continue to refer to Messrs. Brennan...
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