Hendricks v. Superior Court In and For City and County of San Francisco

• Decision Date: 01 December 1961
• Parties: Nell HENDRICKS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, and the Honorable Walter Carpeneti, Judge Thereof, Respondents. Seibert L. Sefton, Real Party in Interest. Civ. 20227.
• Court: California Court of Appeals Court of Appeals

Page 364

17 Cal.Rptr. 364

197 Cal.App.2d 586

Nell HENDRICKS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, and the Honorable Walter Carpeneti, Judge Thereof, Respondents Seibert L. Sefton, Real Party in Interest.

Civ. 20227.

District Court of Appeal, First District, Division 1, California.

Dec. 1, 1961.

Hearing Denied Jan. 24, 1962.

Arthur Matin, Vernon W. Humber, San Francisco, for petitioner.

A. Brooks Berlin, San Francisco, for respondents.

BRAY, Presiding Justice.

Petition for writ of prohibition to prohibit the superior court from paying out certain moneys deposited in court for payment of judgment in a personal injury action.

Question.

Has the court in a personal injury action jurisdiction to foreclose an attorney's lien on the judgment in said action?

Record.

On April 5, 1956, petitioner who had been injured in an automobile accident, executed in writing an attorney's contingent fee retainer agreement with Attorney Seibert L. Sefton, under which the attorney was to receive one-third of the amount recovered. Attorney Sefton filed suit in her behalf to recover damages for her injuries. Thereafter petitioner terminated the agreement. Thereupon the attorney filed in the personal injury action a notice of his lien on any recovery. Petitioner then filed a declaratory relief action seeking to have the agreement declared void. (See Hendricks v. Sefton (1960), 180 Cal.App.2d 526, 4 Cal.Rptr. 218.) There the court held the agreement to be a valid one, that petitioner did not have sufficient cause for terminating it, and affirmed the judgment of the superior court which held that the attorney had a valid enforceable lien for his fee upon any recovery in the personal injury action.

The personal injury action proceeded to trial, another attorney acting for petitioner. Judgment of $26,109.70 was recovered in favor of petitioner. The defendant in that action deposited in court the amount of the judgment. Thereafter Attorney Sefton moved the court in that action to allow him to withdraw the sum of $8,333.33. Petitioner opposed the motion, contending that the court had no power to determine the attorney's right to this money, and claiming that Sefton had breached the contract by refusing to advance the costs of the action as required by the contract. She also claimed that in any event, the attorney's fees should be computed on the balance remaining after the costs of the litigation were deducted from the amount of the recovery. The trial court nevertheless ordered that the sum of $8,333.33, which was one-third of the gross recovery, be paid over to the attorney.

No Right to Foreclose Lien.

Writ of prohibition is an appropriate remedy to arrest the proceedings of a court when those proceedings are without or in excess of jurisdiction and there is no plain, speedy and adequate remedy at law. (Code Civ.Proc. §§ 1102, 1103.) For the issuance of prohibition it is not necessary that there be a lack of jurisdiction over the subject matter or the parties in the fundamental sense, but only that there be a want or excess of the power of the court as defined by statutes or by rules developed and followed under the doctrine of stare decisis. (City of Los Angeles v. Superior Court (1959), 51 Cal.2d 423, 429, 333 P.2d 745.)

As Attorney Sefton was not a party in the original action any order or judgment therein giving him attorney's fees is in excess of jurisdiction. Such an order or judgment, if made, is void. (See Restatement,...