Griffith v. Walesby, No. 18496.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBland
Citation91 S.W.2d 232
PartiesGRIFFITH v. WALESBY et al.
Decision Date02 March 1936
Docket NumberNo. 18496.
91 S.W.2d 232
GRIFFITH
v.
WALESBY et al.
No. 18496.
Kansas City Court of Appeals. Missouri.
March 2, 1936.

[91 S.W.2d 233]

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

Action by Ralph E. Griffith against A. E. Walesby, Jr., and the E. D. Tyner Construction Company. From a judgment for plaintiff, defendants appeal, and plaintiff moves to dismiss the appeal as to the last-named defendant.

Motion to dismiss appeal denied and judgment reversed and cause remanded.

Hook & Thomas and Harris & Koontz, all of Kansas City, for appellants.

Ralph S. Latshaw and Ralph E. Griffith pro se, both of Kansas City, for respondent.

BLAND, Judge.


The action herein is to recover the loss of an attorney's lien for a fee. The petition alleges that one John H. Dalton was injured through the negligence of defendants engaged in construction work near Van Horn Road and Harris Street, in Jackson County, Missouri, and had a subsisting cause of action against them, and executed a written contract with plaintiff employing him to prosecute his claim for damages for personal injuries against defendants wherein said Dalton agreed to pay plaintiff fifty per cent. of whatever amount might be realized on his claim either by suit or compromise; that on the next day after said contract was executed he served written notice on defendants that plaintiff had such written contract and would demand fifty per cent. fee whether Dalton's claim was satisfied by suit or compromise, thereby perfecting his attorney's lien as provided by section 11717, Rev.St.Mo. 1929 (Mo.St.Ann. § 11717, p. 633); that on the 23d day of December, 1931, defendants, without obtaining plaintiff's consent, and in disregard of his rights and lien, paid Dalton $4,800 in compromise of said claim and thereby deprived plaintiff of said lien to his loss and damage in the sum of $2,400, for which he prayed judgment.

Defendant, Walesby, Jr., by his separate amended answer, denied generally, and then set up that within a few days after plaintiff claims to have been employed as attorney, plaintiff was advised by said Dalton that he, plaintiff, had not been employed by him, and thereupon plaintiff abandoned any representation or attempted representation of said Dalton, and rendered no service to him.

The other defendant, E. D. Tyner Construction Company, at first filed a separate answer consisting merely of a general denial, but, in the course of the trial, it adopted the answer of the defendant, Walesby, Jr., as its own. After a trial, the jury found for plaintiff in the sum of $2,400, on which judgment was rendered, and, the usual motion having proved unavailing, defendants appealed.

At the outset we are confronted with plaintiff's motion to dismiss the appeal of the defendant, the E. D. Tyner Construction Company, because of an insufficient affidavit for appeal.

91 S.W.2d 234

The affidavit, says affiant on his oath, says: "he is attorney and agent for defendant, E. D. Tyner Construction Company, in the above entitled cause and that he has authority to make this affidavit for and on behalf of said defendant; that the appeal prayed for in the above entitled cause is not made for vexation or delay, but because said appellant is aggrieved by the judgment and decision of the court in the above entitled cause."

It will be remembered that section 1020, Rev.St.Mo. 1929 (Mo.St.Ann. § 1020, p. 1295), says: "The appellant or his agent shall * * * file * * * his affidavit, stating that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment," etc. The criticism of the affidavit is that, instead of saying that "affiant believes that the appellant is aggrieved by the judgment," etc., affiant states as a fact, rather than a matter of belief, that appellant is aggrieved. Among the definitions of "believe," in Webster's International Dictionary, is "to think, consider, regard, accept or hold as true." Hence, when affiant swears, as a fact, that appellant is aggrieved, he must be understood as stating affirmatively and more positively that he believes appellant is aggrieved. If the statute, with regard to the affidavit for appeal, is "substantially complied with," that is sufficient to give the appellate court jurisdiction. The reason the affidavit, in Waller v. Robertson Transfer Co. (Mo.App.) 214 S.W. 267, was held insufficient was not because of a technical ruling, but because the affidavit did not state what the affiant believed about the matter. The affidavit, in Arkansas, etc., R. Co. v. Powell, 104 Mo.App. 362, loc. cit. 367, 80 S.W. 336, 337, while the opinion states, that "a substantial, if not literal, compliance with the statute, is required," was held not a substantial compliance because it stated nothing concerning affiant's belief nor contained any statement of fact in regard thereto. A substantial compliance with the statute is all that is required. De Bolt v. Kansas City, Fort Scott, etc., Ry. Co., 123 Mo. 496, 27 S.W. 575, 580. In the case cited, the affidavit was held sufficient though it used the word "considers" instead of "believe." In State v. Berkeley, 41 W.Va. 455, 23 S.E. 608, 610, it is said: "Is there a solid distinction between human knowledge and belief? Practically and metaphysically the difference is only in degree of conviction, on the evidence of the fact. Belief is the conclusion of the mind as to the existence of the fact. It may be weak or strong belief. If strong, decided conviction, we may call it knowledge, and yet it is only belief." This is, we think, applicable to the situation here, where affiant made affidavit that appellant is aggrieved, which is stronger than if he had sworn affiant believes appellant is aggrieved. We think that there was a substantial compliance with the statute.

Aside from this, we do not think that the point was timely raised. The cause was set for hearing in this court on December 4, 1935. The abstracts and briefs were required to be served on the respondent 20 days prior to that time. The motion to dismiss the appeal was filed on November 23, 1935, which was after the abstract and brief of appellants were printed and filed in this court. The respondent could not have been prejudiced by the failure of the affidavit to follow exactly the words of the statute and he waited until after appellants had gone to the expense of printing their brief and abstract before raising the point. The motion to dismiss was filed too late (Causey v. Wittig, 321 Mo. 358, 11 S.W.(2d) 11; State ex rel. v. Broaddus, 210 Mo. 1, 108 S.W. 544) and it is overruled.

The evidence in behalf of plaintiff is that he was, on July 2, 1919, duly admitted and licensed to practice law in Missouri; that on June 12, 1930, Rush, a deputy sheriff, came to his office, told him Dalton asked him to get him a lawyer, took him to see Dalton and introduced him, saying to the latter: "Here is the lawyer you asked me to bring you." Dalton had a small bandage on the bridge of his nose, his face was bruised and swollen, his eyes were not swollen shut, but his lips were and he had a bandage on the back of his head. Both plaintiff and Dalton discussed the case, the latter describing the accident and saying he wanted suit brought. Plaintiff prepared a form of contract which he filled out in the presence of Rush and Dalton, and after the contract was filled out, both signed it. The contract was introduced in evidence. After reciting that Dalton had a claim against the defendants, and the nature of it, the contract says Dalton has employed plaintiff to prosecute his claim to final judgment or settlement, and, in consideration of the services rendered, agreed to pay plaintiff a fee or compensation

91 S.W.2d 235

equal to 50 per cent. of whatever amount may be realized on his claim. The contract was signed about eleven o'clock a. m., on June 12, 1930, the day after he was injured at about 10 p. m.

Dalton asked plaintiff to send him out a good doctor, and they spoke of Dr. Ed. Boyer of Kansas City, and plaintiff agreed to send him out. Plaintiff then made arrangements to have some photographs of the place of the injury; he met the photographer there and five photographs were taken. Plaintiff then served notice of his lien upon both defendants. On that day, June 12th, and the next day, plaintiff interviewed about a dozen witnesses to the accident. The evidence is further that on the next day, June 13th, plaintiff returned to the Independence Sanitarium, and Dalton's mother was in the room with him. Dalton told plaintiff his mother and father wanted him to employ some Sedalia attorneys. Plaintiff asked him what kind of a man he was to employ him under a written contract on this case the day before, and told Dalton that he had been taking photographs and had been working on the case.

They then discussed the photographs, and plaintiff read off to Dalton the names of some witnesses he had secured and what they would testify to. Dalton got out of bed, came and looked at every one of the photographs, became very much interested and said to plaintiff, "Griffith, you go ahead and proceed on this case just like I have instructed you." Dalton's mother spoke up and said something to him, which plaintiff did not understand, and Dalton replied to her: "Mother, I am of age and I am going to handle this matter in my own way." After talking to Dalton a few moments, plaintiff then went out and worked further on the case.

The following day plaintiff returned to the Sanitarium, but Dalton was gone. The plaintiff's notice to defendants of his contract and attorney's lien was then introduced in evidence and identified, and was admitted by defendants to have been served upon them.

The evidence shows that shortly after plaintiff found that Dalton had gone, plaintiff received a registered letter, dated June 15, 1930, from a firm of lawyers at Sedalia, Missouri, telling plaintiff that they had been...

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2 practice notes
  • Subscribers at Cas. Reciprocal Exch. v. Pub. Serv., No. 18495.
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1936
    ...assignment of a cause of action in order to support a direct action by the assignee, yet facts must exist with respect to a legally 91 S.W.2d 232 assignable cause of action sufficient for an assignment to be implied by operation of law; and then the implication must extend to an assignment ......
  • Federal Chemical Co. v. Farmers Produce Exchange, No. 5927.
    • United States
    • Court of Appeal of Missouri (US)
    • July 5, 1938
    ...filed. The court held it was sufficient to give it jurisdiction. Of a similar import is the case of Griffith v. Walesby, Mo.App., 91 S. W.2d 232. In the case at bar, as we held, there was no affidavit filed and this court acquired no jurisdiction. Cassidy v. City of St. Joseph, 247 Mo. 197,......
2 cases
  • Subscribers at Cas. Reciprocal Exch. v. Pub. Serv., No. 18495.
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1936
    ...assignment of a cause of action in order to support a direct action by the assignee, yet facts must exist with respect to a legally 91 S.W.2d 232 assignable cause of action sufficient for an assignment to be implied by operation of law; and then the implication must extend to an assignment ......
  • Federal Chemical Co. v. Farmers Produce Exchange, No. 5927.
    • United States
    • Court of Appeal of Missouri (US)
    • July 5, 1938
    ...filed. The court held it was sufficient to give it jurisdiction. Of a similar import is the case of Griffith v. Walesby, Mo.App., 91 S. W.2d 232. In the case at bar, as we held, there was no affidavit filed and this court acquired no jurisdiction. Cassidy v. City of St. Joseph, 247 Mo. 197,......

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