Gibson v. Chicago, M. & St. P.R. Co.

• Decision Date: 03 February 1904
• Citation: 98 N.W. 474,122 Iowa 565
• Parties: G. A. GIBSON AND MILT H. ALLEN v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant. MARGARET BUSHGENS, Intervener
• Court: Iowa Supreme Court

98 N.W. 474

122 Iowa 565

G. A. GIBSON AND MILT H. ALLEN v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant. MARGARET BUSHGENS, Intervener

Supreme Court of Iowa, Des Moines

February 3, 1904

Appeal from O'Brien District Court.--HON. GEO. W. WAKEFIELD Judge.

ACTION to compel defendant to pay a sum of money alleged to be due from intervener to plaintiffs for services as attorneys, as to which plaintiffs claim to have had a lien on money due intervener from defendant at the time the services were rendered, which money has since been paid by defendant to intervener without satisfying the plaintiff's lien. Verdict and judgment for plaintiffs. Defendant appeals.

Reversed.

J. C Cook and O. H. Montzheimer for appellant.

G. A Gibson and Milt H. Allen pro se.

OPINION

MCCLAIN, J.

The evidence tended to show that Mrs. Bushgens, the intervener received severe injuries about May 10, 1898, while a passenger on defendant's train, and was carried to a hotel, where, among strangers, and while suffering great pain, she was visited by G. A. Gibson, an attorney, and one of the plaintiffs, and where, as he testifies, a written contract, drawn up by him, was signed by her, authorizing him as attorney to prosecute for her an action against the defendant to recover damages for the injuries she had sustained, and providing that as compensation for his services he should have one-half the amount which she should receive as the result of such action or by way of settlement of her claim. It should be said, in fairness to Gibson, that, according to his testimony, he did not seek out Mrs. Bushgens for the purpose of inducing her to enter into such contract, but that he called on her as an act of kindness, and that when she discovered that he was an attorney the contract was entered into at her suggestion. However this may be, on the next day an original notice of an action by Mrs. Bushgens against the railroad company for the next term of court, which was to commence on May 23d, was served on the agent of the company, and on the day following a petition was filed, in which damages were claimed in the sum of $ 1,500. In connection with the service of the original notice, the railroad company was served with a notice signed by "G. A. Gibson, for Margaret Bushgens," advising the company that he claimed an attorney's lien in the amount of $ 750 against any money recovered in the action. Within two or three days after the service of the notice Gibson entered into an arrangement with Milt H. Allen, another attorney, and his co-plaintiff in this action, by which he assigned to the latter a one-third interest in the contract, and Allen agreed to assist Gibson in conducting the case. Mrs. Bushgens had no knowledge of this arrangement until advised thereof in a letter written to her by Gibson on May 21st, in which she was also advised that an amended and substituted petition had been filed, fixing the amount of damage claimed at $ 1,999. This petition was signed by both Gibson and Allen as plaintiff's attorneys. On June 1st Gibson was advised by Mrs. Bushgens that she had directed a dismissal of this action, and it was in fact dismissed at her direction. Subsequently a suit was brought for her by other attorneys against the company in the federal court, which suit was afterwards settled on the payment of $ 2,000. In the present action to recover judgment against defendant for attorney's fees, for which plaintiffs claim a lien, a verdict was rendered for plaintiff's, and judgment was entered in their favor for $ 200, and defendant asks a reversal for errors of the court, first, in submitting the question as to the validity of the employment of Gibson by Mrs....