Kauffman v. Phillips

• Decision Date: 13 February 1912
• Citation: 134 N.W. 575,154 Iowa 542
• Parties: CORNELIA B. KAUFFMAN, Appellee, v. JOHN E. PHILLIPS, Defendant, Appellee, J. C. MURRAY, Appellant
• Court: Iowa Supreme Court

134 N.W. 575

154 Iowa 542

CORNELIA B. KAUFFMAN, Appellee, v. JOHN E. PHILLIPS, Defendant, Appellee, J. C. MURRAY, Appellant

Supreme Court of Iowa, Des Moines

February 13, 1912

Appeal from Jackson District Court.--HON. A. J. HOUSE, Judge.

THIS is a controversy over a claim made by defendant J. C. Murray who was brought into the original case by an order of court making him a party, in order that his rights to a fund admitted to be due by defendant Phillips to plaintiff Kauffman, might be adjudicated. The trial court sustained a demurrer to the answer and cross-petition filed by Murray and he appeals.

Affirmed.

Wm. Graham, D. V. Jackson, and C. W. Farr, for appellant.

Keck & Keck and Thomas & Thomas, for appellee Kauffman.

W. C. Gregory and Wolfe & Wolfe, for appellee Phillips.

OPINION

DEEMER, J.

Plaintiff brought action to recover a judgment from defendant Phillips for the sum of $ 500 and interest, being the amount which he (Phillips) agreed to pay plaintiff as part consideration for a conveyance to him of certain lands in Clinton county, Iowa, by one William Phillips. The defendant answered, admitting the indebtedness, pleaded a tender of the amount due to plaintiff, and alleged that he brought the money into court and tendered the same to plaintiff. He also filed a cross-bill against Murray and Thomas & Thomas, in which he alleged that each of said parties had served notice upon him of an attorney's lien upon any money in his hands owing to plaintiff, by reason of a contract they had with plaintiff, whereby she agreed to pay them one-third of all the money that should be collected from defendant and one-third of all the money which she might receive as one of the heirs of William Phillips, deceased. He further averred that, while Thomas & Thomas had settled with plaintiff, Murray had not, but was still claiming a lien and insisting that he was entitled to one-third of the amount owing by him to plaintiff; and that he could not safely settle with plaintiff until Murray's claims to the money were adjudicated. He asked an order requiring Thomas & Thomas and Murray to be brought into court and made parties to the action, in order that his liability to them be settled; and that he be protected in paying the money to the plaintiff. An order was made that these persons be made parties, and that they each and all appeared. Thomas & Thomas filed a disclaimer, and Murray filed an answer and cross-petition to plaintiff's petition and to the cross-petition of Phillips. To this plaintiff demurred, and the demurrer was sustained. Thereupon Murray elected to stand on his pleading, and judgment was rendered against him for costs. From these rulings, the appeal is taken.

In his cross-petition, Murray alleged, in substance, that he was employed by plaintiff to ascertain and protect her rights as an heir of Hannah Phillips, deceased, and as heir apparent of William Phillips, who was then living, and to act as her attorney and counselor in all of said matters; that he, with Thomas & Thomas, entered into a written contract with plaintiff, whereby they were retained to act as her attorneys in these matters and to prosecute all suits to final judgment and settlement; that under said retainer Murray and his associates instituted a number of actions, and were engaged in preparing the same for trial, when plaintiff in order to defraud Murray out of his compensation, discharged him. He further alleged, in substance, that among these proposed actions was a general retainer in matters against William Phillips, D. H. Phillips, and John E. Phillips, a suit against J. E. Phillips in Jackson county, a suit against J. E. Phillips in Clinton county, and another suit against J. E. Phillips in Clinton county, and a suit against William Phillips and others in Clinton county, all of which work was done under the said retainer of plaintiff, and on which remains due and unpaid the sum of $ 1,276.75. There is also a claim for the value of services rendered by Murray for the plaintiff at her instance and request. The written contract under which Murray claims was entered into by plaintiff and six other persons with Murray and Thomas & Thomas, and recites that, as the parties first named were desirous of employing counsel for the purpose of partitioning certain real estate at one time owned by Fred Lockwood, and later by William Phillips and Hannah J. Phillips, his wife, situated in Brookfield township, Clinton county, Iowa, and of procuring the settlement and administration of the estate of Hannah J. Phillips, some time deceased, of whom they are heirs at law, and of preserving their rights as heirs at law to the real and personal property of William Phillips, a person of great age and of declining mental powers, now a resident of Brookfield township, Clinton county, Iowa, that they thereby contracted with Thomas & Thomas and Murray for these several purposes, and "agreed with them that they shall act as their attorneys and counselors at law in any and all suits necessary for these several purposes to final termination and judgment or settlement, and that they shall have as their fees the agreed sum of $ 120, the receipt of which is hereby acknowledged by said attorneys, and that they shall have, as a further and contingent fee for their services to be rendered in these various matters, thirty-three and one-third percent of all the moneys recovered, either by settlement or otherwise, save and except only that the fee for the settlement and partition of the real estate mentioned shall be only such as is allowed by law, in so far as the share of Cornelia Kauffman is concerned. It being the intent of the parties to this contract to vest in said attorneys one-third interest and ownership in the properties and moneys therein referred to, or which may grow out of the interest of these parties, as a contingent fee in addition to the fee of $ 120 herein mentioned, and to grant them an attorney's lien therefor; and said attorneys are by this writing instructed and authorized to commence such suit...