Harrison v. Murphy
| Decision Date | 07 March 1904 |
| Court | Missouri Court of Appeals |
| Parties | HARRISON v. MURPHY et al.<SMALL><SUP>*</SUP></SMALL> |
3. Plaintiff entered into a contract to brief a case in the Supreme Court for $500 as a contingent fee, the contract being made with attorneys who had instituted the action on an agreement to take as their fee one-half of the amount recovered. The judgment was collected, but only $200 was paid to the plaintiff, and liability for the balance denied. Held, that plaintiff was entitled to recover in an action at law for breach of the contract, or in equity for money had and received.
4. Where plaintiff entered into a contract to brief a case in the Supreme Court, the contract being made with several attorneys who had instituted the action on an agreement to take as their fee one-half of the amount recovered, and the fee was collected and withheld by one of the attorneys, all of the attorneys were properly joined as defendants in an action by plaintiff to recover the fee due him.
5. Defendants cannot complain that a verdict against them was for a less amount than the pleadings and evidence authorized.
6. Where plaintiff entered into a contract to brief and argue a case in the Supreme Court for $500 as a contingent fee, but before the case was decided the holder of the judgment compromised and settled, relieving plaintiff of the performance of part of the labor he had engaged to do, a verdict for $200 for plaintiff, in an action to recover a balance of $300 due on the fee, does not show that the jury based their verdict on a quantum meruit.
Appeal from Circuit Court, Maries County; James E. Hazell, Judge.
Action by J. B. Harrison against A. P. Murphy and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Thos. M. & Cyrus H. Jones and Joe McGregor, for appellants. J. A. Watson, for respondent.
A Mrs. Wheeler employed W. H. Murphy, an attorney, to bring and prosecute an action for malpractice for her and in her name against Dr. W. H. Bowles. In the contract of employment it was agreed that the said W. H. Murphy should receive as compensation for his services in the malpractice case one-half of whatever amount should be recovered therein. The defendant A. P. Murphy, a son of W. H. Murphy, was at that time associated with his father as partner in the practice of the law. Some time after the suit had been brought the Murphys concluded they would associate with themselves in the conduct and trial of the case the defendants Holmes and Mosby, the latter agreeing with the former that for their services they were to participate in the conditional fee to be received by the former. The case was tried in the circuit court, where the plaintiff had judgment for $4,000. The defendant took an appeal to the Supreme Court. The cause was on the docket of the April term, 1901, of that court. In the December preceding, the said W. H. Murphy found himself in failing health, and that he would not be able to prepare the brief and argue the case when it should be reached for hearing in the Supreme Court. In view of this, said W. H. Murphy and defendants Holmes and Mosby met in conference, and there agreed that an attorney familiar with the practice in the Supreme Court should be engaged to brief and argue the case, and that defendant Holmes be authorized to engage such an attorney, exercising his judgment in the selection. Defendant Holmes thereupon requested the plaintiff to brief and argue the malpractice case, telling him that his fee would be conditional, that W. H. Murphy, Mosby, and himself were to receive for their fee one-half of the amount of the judgment recovered, and that they would satisfy him for his services out of that. The plaintiff, after examination of the papers relating to the case, told defendant Holmes that he would brief and argue the case for a $500 contingent fee. W. H. Murphy was notified of the plaintiff's employment and of the amount of the fee demanded, and with which he expressed himself satisfied. The plaintiff accordingly briefed and argued the case before the Supreme Court, where the judgment of the circuit court was affirmed. Shortly after the affirmance the plaintiff therein, Mrs. Wheeler, assigned the same to defendant A. P. Murphy, to whom, shortly thereafter, it was paid. The said W. H. Murphy died on April 22, 1901. The defendant A. P. Murphy paid plaintiff $200 for his services in the malpractice case, and refused to pay him any more. This suit was brought to recover the sum of $300 claimed to be still due and owing plaintiff under his contract of employment. There was a trial in which plaintiff recovered judgment for $200, and to reverse that judgment this appeal is prosecuted.
The contention of the defendants A. P. Murphy and F. W. Murphy, administrator of W. H. Murphy, deceased, is that, as the plaintiff resided in Phelps county and they resided in Pulaski county, the circuit court of Maries county, in which the suit was brought, was without jurisdiction of their person. Even if the defendants Holmes and Mosby, residents of Maries county, were not necessary or proper parties defendant, and were wrongfully joined with the Murphys as defendants in the cause, yet as the latter appeared to the action at the return term of the writ, and obtained leave to answer 30 days before the next term, this was sufficient to confer jurisdiction. They thereby brought themselves within the jurisdiction of the court. The question of jurisdiction over the person was thereby waived as to them. Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726; Peters v. Ry. Co., 59 Mo. 406; Taylor v. Ry. Co., 68 Mo. 397; Tower v. Moore, 52 Mo. 118; Pry v. Ry. Co., 73 Mo. 123; Clark v. Brotherhood Loco. Firemen (decided by us March term, 1903, but not yet officially reported) 74 S. W. 412.
It is true that under our present practice act a defendant may in his answer include with his defense on the merits a plea to the jurisdiction of the person of the defendant, without foregoing the benefits of such plea. Byler v. Jones, 79 Mo., loc. cit. 263; Little v. Harrington, 71 Mo. 390. The defendants did not pursue this course, but, on the contrary, they unconditionally appeared and took leave to answer within 30 days thereafter. After obtaining this permission they filed a motion to quash the writs, which was, we think, properly overruled. It is true, in their answer to the second amended petition they included with their defense on the merits a plea to the jurisdiction, but they seem thereafter to have abandoned this plea, for it nowhere appears in the record that the court was requested to pass upon it. If the defendants had cared to rely upon this plea to oust the jurisdiction of the court, they should have asked the consideration of it by the court before proceeding with the trial on the merits. After filing the answer containing the plea, they made no further mention of it, but proceeded without objection to a trial on the merits, and so are now in no situation to assail the judgment on the ground that the plea to the jurisdiction was not passed upon and determined by the court. If the court struck out any part of defendants' answer, the record does not show such ruling, nor does it show any exception was taken and saved thereto, so that this ruling, if made, is not before us for review.
The defendants object that the plaintiff's second ...
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