Kusterer v. City of Beaver Dam

• Decision Date: 09 January 1883
• Citation: 56 Wis. 471,14 N.W. 617
• Parties: KUSTERER v. CITY OF BEAVER DAM.
• Court: Wisconsin Supreme Court

56 Wis. 471

14 N.W. 617

KUSTERER

v.CITY OF BEAVER DAM.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Appeal from county court, Dodge county.

This is an action for personal injury happening to the plaintiff January 10, 1880, by reason of a defective sidewalk in Beaver Dam. Issue was joined by service of an answer September 26, 1881, and the cause was noticed for trial and placed upon the calendar of the term commencing December 6, 1881, on which day the cause was set down for trial January 4, 1882. December 6, 1881, the plaintiff's attorneys, E. P. Smith and J. J. Dick, served upon the mayor of the city, W. C. Griffis, a copy of an agreement between them and the plaintiff, made April 24, 1880, whereby the said attorneys agreed to prosecute the action to final judgment and conviction with their best efforts, and in consideration therefor the plaintiff agreed to and with them, and thereby promised, “to give to them one-half of the damages recovered in said action, and all the taxable attorney's fees, and to pay all his own costs,” and further, that said attorneys should be at no court costs whatever; and the plaintiff further agreed not to discontinue the action nor settle the same without the consent of said attorneys. December 10, 1881, the defendant, without the knowledge or consent of said attorneys, paid to the plaintiff $300, and procured from him a release and discontinuance as follows:

[Title of cause.] “Received of the city of Beaver Dam $300, in full for all actions, causes of actions, claims, demands, suit, costs, expenses, and rights of action of any name and nature, to date, for damages sustained or injuries suffered, and I do hereby discontinue and release and stop all proceedings or actions which I have now pending against said city, and neither party shall recover costs against the other. Witness my hand and seal this 10th day of December, 1881.

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                ¦“ W. C. Griffis.  ¦SIMON KUSTERER. [Seal.]”¦
                +-------------------------------------------+
                

January 4, 1882, the day so fixed for said trial, the case was called for trial, whereupon the defendant obtained from the court an order granting leave to the defendant to file a supplemental answer in said cause, setting up such release and discontinuance, and that the cause stand for trial at the same term, to-wit, March 8, 1882; to which order the plaintiff's counsel then and there excepted. January 9, 1882, such supplemental answer was filed in the cause, setting up said release and discontinuance, and giving a copy thereof, and demanding judgment of the dismissal of the action. On the trial, the facts above stated being made to appear to the court, without a jury, the same having been waived by the parties in open court, the court, against the objection of the plaintiff's said attorneys, ordered the action to be dismissed; and from the judgment entered thereon this appeal is brought.

J. J. Dick and E. P. Smith, for appellant, Simon Kusterer.

H. W. Lander, for respondent, the City of Beaver Dam.

CASSODAY, J.

There is no claim that the agreement between the plaintiff and his attorneys was champertous, and we agree with counsel for the plaintiff that it was not within the rule laid down by this court in Allard v. Laurirande, 29 Wis. 502. A single question is, therefore, presented for determination. In an action against a city for personal injury, happening by reason of a defective sidewalk, where the plaintiff had agreed with his attorneys to pay all his own costs and save them from any court costs, and give to them one-half of the damages recovered and all the taxable attorney's fees, and not to discontinue the action, nor settle the same without their consent, in consideration of their agreement to prosecute the action to final judgment with their best efforts, and they do so prosecute, can the defendant, with knowledge of such agreement and performance, and against the protest of such attorney, relieve itself from all further liability by paying to the plaintiff, personally, a sum of money in settlement of suit, and procuring from him a release and discontinuance of the action.

In Howard v. Osceola, 22 Wis. 454, it was held that an attorney who has rendered services, and advanced money or made himself liable for the costs, in an action commenced by him on a town order in his hands, has a lien upon the order for the amount; and a judgment of discontinuance of the action, upon the ground that the case had been settled by the parties in disregard of such lien, was reversed to enable the plaintiff's attorney to collect the costs of the action and his fees.

In Courtney v. McGavack, 23 Wis. 622-3, Judge DIXON, speaking of the attorneys having a “lien upon the cause of action,” said: “We are satisfied that independently of an agreement to that effect between...