Klampe v. Klampe

• Decision Date: 15 June 1917
• Docket Number: 20,407 - (142)
• Parties: CHRISTINA KLAMPE v. FRANK KLAMPE
• Court: Minnesota Supreme Court

163 N.W. 295

137 Minn. 227

CHRISTINA KLAMPE v. FRANK KLAMPE

Nos. 20,407 - (142)

Supreme Court of Minnesota

June 15, 1917

Upon application of Frank Klampe the district court for Dodge county granted its order directing H. J. Edison to show cause why he should not pay over to said Frank Klampe $1,250. Edison served upon plaintiff and her attorneys notice that he claimed an attorney's lien upon the moneys due to defendant. The matter was heard by Childress, J., who discharged the order to show cause. From the order discharging the order to show cause, Frank Klampe appealed. Reversed.

SYLLABUS

Divorce -- attorney and client -- agreement against public policy.

1. An agreement between an attorney and the husband for a contingent fee of 50 per cent for the recovery of property in the wife's name, construed and held to be made for the purpose of facilitating a divorce in a proceeding about to be instituted by the one against the other, and therefore against public policy and void.

Divorce -- retention by attorney of money of client.

2. When an attorney in a divorce action serves notice of claim of lien for his fees upon the adverse party, and receives money thereunder to apply on the judgment, he cannot withhold the same from his client under a contract for fees in another matter.

Divorce -- attorney's lien covers only reasonable value of services.

3. Under a claim of lien for attorney's fees, the attorney may retain from his client, in the absence of an agreement for the amount of his fees, only sufficient to cover the reasonable value of his services.

Oscar C. Ronken, for appellant.

J. J McCaughey, for respondent.

OPINION

QUINN, J.

Plaintiff and defendant, for about 40 years, were husband and wife and resided most of that time on a farm of 80 acres in Mower county which plaintiff had inherited. Through their joint efforts they acquired an eighty in Dodge county and a house and lot in Kasson, titles to which were in the plaintiff. Domestic trouble arose and for a number of years they lived apart, plaintiff remaining upon the Mower county farm with the children and defendant residing elsewhere. For a time defendant was engaged in the implement business at Kasson, but did not succeed well. He was illiterate, unable to write more than his own name, but possessed some ability for making bargains. Respondent Edison had resided in Dodge county all his life, was a graduate of the University, admitted to practice law, and since 1906 has practiced at Kasson.

In October, 1916, trouble arose over the possession of some cows on the Mower county farm and defendant employed respondent to bring replevin therefor. Before the papers were served the matter was settled and defendant paid respondent $35 for his services. A day or two later defendant went to respondent's office and consulted him with reference to a recovery of a portion of the property in his wife's name, stating that he had no money to pay attorney's fees. Respondent stated that he sometimes took such matters on a contingent fee, and that he would take his case for 50 per cent of whatever amount he might recover. Defendant accepted the offer and they entered into a written contract to that effect. At the time considerable talk was had about a divorce proceeding. On November 4 the summons and complaint herein were served upon defendant, who employed respondent as his attorney in the divorce proceeding. Respondent then prepared and served an answer in the form of a general denial. On November 15 defendant was at Rochester, and in his absence respondent arrived at an agreement with plaintiff as to the amount she would pay defendant for his interest in the property when she obtained a decree of divorce. On the day following respondent, in company with plaintiff and her attorney, went to an adjoining county where the district court was in session. The plaintiff then offered proofs in the divorce proceeding. No testimony was offered on behalf of defendant, nor was he present. The court made findings and ordered judgment in favor of plaintiff for an absolute divorce, the custody of a minor child, and for judgment in favor of defendant in the sum of $2,500 for his interest in the property of plaintiff. On the same day judgment was entered upon such order and respondent caused a notice of claim of lien for his fees, dated on the previous day, to be served upon plaintiff and her attorney. Plaintiff then paid to respondent the sum of $1,250 upon the judgment. On the following day respondent procured from defendant a written consent to the trial of the case at that time.

At the hearing upon the order to show cause, respondent undertook to justify the retention of the money, and testified in response to the question: "Was some money paid over to you? A. Yes, the $1,250 was paid over to me by Mr. Little. I served that notice of lien to protect my interest. I didn't know whether it would stick or not but it scared them enough so they turned the money over to me." In his brief respondent insists that "there is no evidence in the record showing that the contract was for the purpose of facilitating a divorce. It had reference only to the respondent's contingent compensation for securing payment for appellant's equity in land held by his wife. The result of the respondent's services, rendered pursuant to the contract, was $2,500, of which each party has received $1,250 in full execution thereof. There is no equity in appellant's claim. Substantial justice has been done * * *."

The contingent contract is as follows:

"This agreement made and entered into this 11th day of October A.D. 1916, by and between Frank Klampe, Sr., party of the first part, and H. J. Edison, party of the second part:

WITNESSETH, That whereas the said party of the first part is desirous of employing second party as his attorney-at-law and counsellor to act for said first party in the recovery of such interest as he may have in real estate situate in Dodge county, Minnesota, and now appearing of record in the name of Christina L. Klampe, his wife, and to obtain said interest in land or money or other property from the said Christina L. Klampe or anyone else in whose possession such property may be found.

NOW THEREFORE, In consideration of the said party of the first part paying to the said party of the second part...