Juergens v. Ritter

• Decision Date: 12 April 1938
• Citation: 279 N.W. 51,227 Wis. 480
• Parties: JUERGENS v. RITTER.
• Court: Wisconsin Supreme Court

227 Wis. 480

279 N.W. 51

JUERGENS

v.RITTER.

Supreme Court of Wisconsin.

April 12, 1938.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustav G. Gehrz, Judge.

Affirmed.

The action was commenced in the civil court of Milwaukee county on October 26, 1936, by the plaintiff, Carl H. Juergens, against the defendant, Oscar A. Ritter, to recover a certain attorney's fee asserted to be due him for services rendered the defendant who is the executor of the last will and testament of Frank Luenzmann, deceased. Since the appeal is from a summary judgment it will be necessary to summarize the pleadings and supporting affidavits. The material facts alleged in the complaint are as follows:

I. The plaintiff resides in the city of Milwaukee and is an attorney at law duly licensed to practice his profession.

II. The defendant resides in the city of Milwaukee and is now, and has been for some time the duly appointed, qualified and acting executor of the last will and testament of Frank Luenzmann, deceased.

III. On or about October 5, 1936, the defendant, as such executor, and the plaintiff, as attorney for said executor and for said estate, entered into a written agreement, termed a “consent to substitution,” wherein and whereby it was agreed that Cyril C. Foster be substituted as attorney for said executor and for said estate in place of the plaintiff, upon the express condition that the defendant should forthwith, upon the allowance by the county court of Milwaukee county of the fee due the plaintiff in said matter, pay the amount thereof to the plaintiff. On or about October 6, 1936, the said Cyril C. Foster signed said formal consent, thereby agreeing to act as attorney for said executor and said estate. On October 8, 1936, an order for such substitution of attorneys was duly signed by one of the judges of said county court-the said order expressly providing that the substitution of attorneys is made “upon the express condition that said Oscar A. Ritter, as such executor, shall upon the allowance by this court of the fee due said Carl H. Juergens, Esq., in the above entitled matter, forthwith pay the amount thereof to said Carl H. Juergens.”

IV. On October 8, 1936, after due hearing before said county judge, it was determined that the amount of the fee due said Carl H. Juergens, for the professional services he had rendered said executor, was $548.54. On October 13, 1936, the said county judge signed and duly caused to be filed and entered a formal order which provided that the said Oscar A. Ritter be required forthwith to pay the plaintiff, for the aforementioned services rendered and chargeable to said executor, the sum of $548.54.

V. That due demand has been made upon the defendant, who is personally and directly liable therefor at law, but the defendant has neglected and refused to pay more than $237.53.

The defendant's answer admitted the allegations contained in paragraphs I, II, III, and IV of the plaintiff's complaint but denied so much of paragraph V of the complaint as asserted that the defendant was personally liable to the plaintiff for the balance of $311.01. The defendant further alleged that prior to the death of the said testator, Frank Luenzmann, the plaintiff had represented him, the said testator, and was in possession of information that indicated that the said testator was insolvent at the time of his death; that upon the death of the testator the plaintiff was engaged as counsel to probate the will of the said testator; that an express agreement was made with the defendant, at the plaintiff's suggestion, to the effect that his fee in said matter would be very reasonable inasmuch as the estate was insolvent, and that he would exact his fee out of the appreciated assets, if any, of said estate, and not from defendant personally; that if, as plaintiff alleges, he had any right at law to hold defendant personally liable for the services rendered in said estate, such rights were waived by plaintiff's prior acts.

The plaintiff thereupon made and filed an affidavit which referred to several documents, copies of which were attached to and made a part thereof, to wit: (1) A consent to substitution of attorneys which was signed, both by the defendant and the plaintiff; (2) an order of the county court of Milwaukee county which substituted Cyril C. Foster as attorney of record for the defendant as executor; (3) an order of the said county court which determined that the plaintiff was justly entitled to compensation for the professional services rendered to said executor and said estate in the sum of $548.54, and which ordered “that said Oscar A. Ritter, as such executor, be and he hereby is required forthwith to pay said Carl H. Juergens for his aforementioned services rendered and chargeable to said executor, the sum of $548.54”; and (5) a receipt signed by the plaintiff acknowledging the payment to him by the defendant of the sum of $237.53 on account. Thereafter the defendant made and filed an affidavit in which he asserted: That the county court never directed him personally to pay the attorney's fee due and payable to the plaintiff but directed that such fee was due and payable from the estate of said Frank Luenzmann, deceased; that it was understood and agreed between him and the plaintiff that the attorney's fee was to be paid out of the appreciated assets in said estate; that the order of the county court did not direct him, except as executor, to pay any sums to the plaintiff; and that the receipt tendered the defendant by the plaintiff was a self-serving document drawn without the consent or knowledge of the defendant. The plaintiff thereupon filed another affidavit which need not be summarized. Upon the plaintiff's complaint and affidavit and the defendant's answer, the plaintiff moved for summary judgment. Another long affidavit was thereafter submitted by the defendant, the contents of which need not be summarized. The civil court granted the plaintiff's motion for summary judgment and made and filed its findings of fact and conclusions of law. Judgment was thereafter entered in favor of the plaintiff, for the sum of $311.01 and interest. From that judgment the defendant appealed to the circuit court for Milwaukee county. The latter court, after due hearing, affirmed the judgment of the civil court. From a judgment entered October 19, 1937, the defendant appealed.

Cyril C. Foster, of Milwaukee (John E. Ferris, Jr., of Milwaukee, of counsel), for appellant.

Lloyd S. Jacobson and George F. Sieker, both of Milwaukee, for respondent.

NELSON, Justice.

In asking this court to reverse the judgment of the circuit court for Milwaukee county which affirmed a summary judgment of the civil court of Milwaukee county, the defendant first contends that the facts of the instant case are not such as to bring it within the provisions of the summary judgment statute, section 270.635. The summary judgment statute, among other things, provides:

“Summary judgment may be entered as provided in this section in an action

“(a) To recover a debt or demand arising on a contract, express or implied (other than for breach of promise to marry).”

In our view there is no dispute between the parties as to the material facts. The plaintiff as an attorney at law rendered services to the defendant as executor of the last will and testament of Frank Luenzmann. After a time the defendant desired to have another attorney substituted in the place of the plaintiff. The plaintiff and the defendant signed a written consent to substitute Cyril C. Foster as attorney for the defendant as executor, wherein and whereby it was agreed: “The undersigned hereby consent that Cyril C....