Hampton v. Hampton

• Decision Date: 05 January 1935
• Docket Number: 4878
• Citation: 85 Utah 338,39 P.2d 703
• Court: Utah Supreme Court
• Parties: HAMPTON v. HAMPTON et al

39 P.2d 703

85 Utah 338

HAMPTON v. HAMPTON et al

No. 4878

Supreme Court of Utah

January 5, 1935

Appeal from District Court, Third District, Salt Lake County; J. W McKinney, Judge.

Action by Zora W. Hampton against Walter M. Hampton, in which Hyrum A. Belnap represented plaintiff as her attorney, and in which plaintiff obtained judgment. From an order requiring Hyrum A Belnap to return to his client certain money withdrawn from clerk of court to apply on fee, he appeals.

ORDER VACATED, and proceeding dismissed.

H. A Belnap, of Ogden, for appellant.

Benjamin Spence, of Salt Lake City, for respondent.

Richards & Mitchell, of Salt Lake City, for defendant.

STRAUP Chief Justice. ELIAS HANSEN, FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur.

OPINION

STRAUP, Chief Justice.

Belnap, an attorney at law, was employed by Zora W. Hampton to prosecute an action for divorce against her husband, Walter M. Hampton. She paid her counsel $ 10 to apply on attorney's fees when the action was commenced, and later paid him an additional fee of $ 10, $ 5 of which was paid out by him for costs. Hampton was employed as a teacher in the public schools of Salt Lake City with a salary and income of about $ 160 a month. Belnap prosecuted the action to final judgment. The plaintiff was granted a decree of divorce, the custody of a minor child, $ 60 a month as and for permanent alimony for the support of herself and of the child, and in addition thereto, as ordered by the decree, received a promissory note in the sum of $ 500 executed by the defendant and payable to the plaintiff, and $ 75 attorney's fees. The decree was entered September 28, 1928. The attorney's fees and costs were to be paid forthwith, the alimony to be paid in monthly payments. The defendant paid $ 180 on alimony direct to the plaintiff. He failed to pay the attorney's fees or costs or any part thereof. An execution was issued which was returned unsatisfied. The defendant's employer, the board of education, was garnished. Defendant answered, setting up a discharge in bankruptcy. Apparently the garnishment was not further pursued.

Plaintiff's attorney served and filed a notice of claim of lien on the judgment and the proceeds thereof in the divorce action. Later, on stipulation entered into by and between him, while he was still plaintiff's attorney of record, and the defendant and his attorney, an order of court was entered in the cause January 5, 1929, requiring the defendant to pay the alimony to the clerk of the court to be withdrawn by the plaintiff or by her attorney of record. A few days thereafter, Hampton, in obedience to such order, paid a monthly payment amounting to $ 60 to the clerk of the court. Belnap, still plaintiff's attorney of record and in accordance with the order, withdrew the $ 60 as and for or to be applied on his fees in the cause. The plaintiff learning thereof, complained to one of the judges of the district court, claiming that such moneys were withdrawn without her consent or authority, whereupon the judge on his own motion, and without the filing of an affidavit or petition, on January 9, 1929, issued a citation requiring plaintiff's attorney on January 12th to show cause why he should not return to the plaintiff the $ 60 so withdrawn by him. On the 12th, the attorney appeared and moved to quash the citation. But on that day plaintiff filed an affidavit in support of the citation. The motion to quash was overruled. Plaintiff's attorney on the 14th filed an affidavit in answer to plaintiff's affidavit. Thereafter the matters in issue presented by the affidavits came on for hearing before the court; both parties giving oral testimony with respect thereto. The testimony so taken and the proceedings had and the rulings and orders made therein are preserved by a bill of exceptions. The affidavits were not embodied in the bill. I think they were not required to be. They constituted the documents in the nature of pleadings presenting the issues which the court heard and tried, analogous to pleadings in a regular cause presenting issues to be heard and tried, and in effect constituted the initial documents or pleadings invoking jurisdiction to hear and determine the controversy between the parties. Upon so hearing the matter and upon a submission thereof, the court, being fully advised in the premises, on March 8, 1929, entered an order that Belnap forthwith return to plaintiff, Mrs. Hampton, the sum of $ 60 theretofore withdrawn by him. From that order Belnap has prosecuted this appeal.

The substance of the affidavit of plaintiff is that she obtained a decree of divorce; that Belnap acted as her attorney; that he agreed with her he would look to the defendant for his fees; that without her knowledge or consent he procured the order of court permitting him to withdraw moneys paid to the clerk of the court, and withdrew $ 60 thereof, and converted the same to his own use; that she made demand for its return; and that he refused to do so.

The affidavit of Belnap is rather lengthy, but, so far as material, the substance is that the plaintiff sought his employment because of legal services theretofore rendered by him for her husband and because thereof she felt he, better than any one else, was familiar with the affairs between her and her husband; that Belnap advised her that her husband had not paid him for services theretofore rendered by him amounting to $ 150, and that he could not work for nothing; that she informed him, if he took the case, she herself would pay him his fees, and agreed to do so; that she paid him $ 10 to apply on fees and later paid him $ 10 more, of which he paid out $ 5 for costs. He further deposed concerning the nature and character of services rendered by him which are not disputed; that by execution and garnishment he had endeavored for and on her behalf to collect the attorney's fees from the defendant, but was unable to do so; that he served and filed in the divorce action a notice claiming a lien on the judgment and the proceeds thereof; that, after such service on the defendant, it was at the suggestion of defendant's counsel that the stipulation was entered into for an order requiring the defendant to pay the alimony to the clerk of the court and permitting the plaintiff or her attorney of record to withdraw the moneys so paid in; that, before he entered into the stipulation and withdrew the $ 60, he endeavored to notify the plaintiff, but was unable to do so, because she had changed her residence and address.

We find it unnecessary to more fully detail the substance of the testimony adduced by the parties at the hearing. As we view the matter, the controlling feature of the case is reduced to rather a narrow compass: What was the agreement, either express or implied, between the plaintiff and her counsel as to compensation for services to be rendered by him, whether he had agreed with her that she was not obligated to pay him anything for fees unless collected from or paid to her by the defendant, or because of any agreement made by him with her that he was to look alone to the defendant for his compensation? As to that, Belnap testified positively that, while he advised the plaintiff that in obtaining a decree of divorce she would be entitled to an award for counsel fees, such a claim would be and was put in the complaint, but, for reasons stated by him to her, he could not and would not look to the defendant for his fees, whereupon she agreed herself to pay his fees, and in accordance therewith she on her first visit paid him $ 10 to apply on his fees, and later paid him $ 10 more, out of which he paid $ 5 costs.

The testimony of plaintiff on the...