Hilleary v. Hilleary

Citation175 S.W. 282,189 Mo.App. 704
PartiesSALLIE HILLEARY, Plaintiff (HARRY A. FRANK et al., Appellants), v. GEORGE W. HILLEARY, Defendant
Decision Date06 April 1915
CourtMissouri Court of Appeals

March 4, 1915, Argued and Submitted

Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.

Action affirmed.

Bishop & Cobbs for appellants.

(1) "An attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to the verdict, report, decision or judgment in his client's favor, and the proceeds thereof in whosesoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment." Sec. 964 R. S. 1909. Sec. 965, R. S. 1909; Wait v. Railroad, 204 Mo. 491, 503; Bishop v. United Railways Co., 165 Mo.App. 226; Lawson v. Missouri & Kansas Telephone Co., 178 Mo.App. 124; Young v. Renshaw, 102 Mo.App. 173, 187; Curtis v. Railroad, 118 Mo.App 341, 350; O'Connor v. Transit Co., 198 Mo. 622 641. (2) Instructions, in writing by a judgment creditor to her attorneys to collect their fees out of the judgment for alimony, constitutes an assignment of the judgment as security for the fees and is binding on defendant after notice to him. Secs. 2156-2157, R. S. 1909; Lawson v. Missouri & Kansas Telephone Co., 178 Mo.App. 124, 132; Knapp-Stout & Co. v. Standley, 45 Mo.App. 264, 269; Young v. Renshaw, 102 Mo.App. 173, 186-187.

No brief filed for respondent.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.



On November 2, 1910, Mrs. Sallie Hilleary, as she then was, brought her action against her then husband, George W. Hilleary, for divorce. Her petition was drawn up and she was represented in the case by Harry A. Frank and D. J. Sullivan, Esquires, as her attorneys, either directly or by attorneys whom they had associated with them in the conduct of the case. The husband, defendant, filed his answer, a general denial. Thereafter, on June 26, 1911, plaintiff filed her motion for alimony pendente lite and for suit money. This motion coming up for hearing was denied by the court on February 17, 1911. Thereafter on April 3, 1911, defendant not further appearing, a decree of divorce was awarded plaintiff, together with a judgment of $ 35 per month for alimony. It appears that subsequently Mrs. Hilleary married and that she appeared in vacation before the clerk of the circuit court in which the decree had been rendered and of which it was of record, and under her new name acknowledged satisfaction of the judgment on July 9, 1912, "for value received," this being entered on the margin of the judgment record and duly attested by the clerk of the court. Thereafter on April 9, 1913, the above-named attorneys of plaintiff filed their motion to set aside this satisfaction of judgment pro tanto, setting out in the motion that they had rendered services to plaintiff in bringing and prosecuting the cause; its trial; obtaining the resulting decree of divorce and judgment for alimony; that the services rendered plaintiff by the moveants or petitioners were reasonably worth $ 75; that plaintiff has been unable and has failed to pay the petitioners for their services rendered in obtaining the decree and judgment; and averring that in June, 1911, plaintiff had notified the petitioners, through their associates, that she was sick and unable to pay for legal services in connection with the litigation and that these fees would have to be paid out of the judgment against defendant. The petitioners thereupon claimed that under section 964, Revised Statutes 1909, they have a lien on the judgment for the amount of their fees, and that after the defendant had been notified that the fees for services rendered to plaintiff were a lien on the judgment and would have to be paid out of the judgment as plaintiff was unable to pay them, that plaintiff and defendant, for the purpose of defrauding the petitioners out of their fees, had attempted a settlement between themselves without the knowledge, advice or consent of the petitioners, and on or about July 9, 1912, had caused to be entered of record a satisfaction of the judgment before set out. Averring that notice and knowledge of this entry of satisfaction had just come to the petitioners and that the satisfaction had been made without their knowledge or consent, for the purpose of defrauding them and depriving them of their fees and preventing them from obtaining their lawful fees and compensation for services rendered in the cause, they moved the court to set aside the satisfaction as entered "pro tanto to the extent of your petitioners' lien herein, to-wit, $ 75, and to award execution in favor of your petitioners and against the defendant George W. Hilleary herein, for the sum of $ 75 and costs and for such other orders as to the court may seem meet and proper."

This motion coming up for hearing before the court, the Honorable Rhodes E. Cave presiding, one of the attorneys who had represented the petitioners and who had been associated with them in the conduct of the case, testified in effect to the matters set out in the motion. He further testified that he thought $ 50 on behalf of Mr. Sullivan and $ 25 on behalf of Mr. Frank would be a reasonable charge; that nothing had been paid on the judgment for alimony, or otherwise, so far as he knew; that Mrs. Hilleary had told him that. He also testified that counsel rendered a bill to Mrs. Hilleary amounting to $ 50; that she had deposited $ 28 with the clerk of the court, $ 3 for filing fee and $ 25 to secure the costs of the clerk; that after the decree was entered the clerk returned a part of that amount, amounting to about $ 10, which counsel testified had been credited on her bill.

In a letter from Mrs. Hilleary to counsel she has written, among other matters: "I have not and do not expect to collect alimony, but if he (Mr. Hilleary) will not at least pay $ 25 to you, I will proceed to collect at least that much." This witness afterwards wrote to Mr. Hilleary and he wrote back that he had an understanding with Mrs. Hilleary's sister that he was not to pay the alimony. It was after this that the satisfaction of the judgment was entered. This was all the testimony in the case and at its conclusion the motion to set aside the judgment and for execution was denied.

From this action of the trial court the petitioners, Messrs. Frank and Sullivan, have appealed to this court.

The learned counsel for appellants have cited possibly...

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