Lawson v. Missouri & Kansas Telephone Co.

• Decision Date: 02 February 1914
• Citation: 164 S.W. 138,178 Mo. App. 124
• Parties: LAWSON v. MISSOURI & KANSAS TELEPHONE CO.
• Court: Missouri Court of Appeals

164 S.W. 138

178 Mo. App. 124

LAWSON v. MISSOURI & KANSAS TELEPHONE CO.

Kansas City Court of Appeals. Missouri.

February 2, 1914.

On Motion for Rehearing February 28, 1914.

1. ATTORNEY AND CLIENT (§ 134)—COMPENSATION—PREMATURE TERMINATION OF RELATION.

An attorney was entitled to compensation for services actually rendered by him in an action,

though they were prematurely terminated by his death.

2. ATTORNEY AND CLIENT (§ 183) — LIEN — PREMATURE TERMINATION OF RELATION.

Under Rev. St. 1909, § 964, providing that from the commencement of an action the attorney who appears for a party has a lien upon his client's cause of action, which attaches to a verdict or judgment in his client's favor, one of the attorneys who brought a suit and appeared therein for plaintiff obtained a lien for his services, which passed to his legal representative, though he died while the action was pending; an attorney, either at the beginning or during the progress of the case, being within the purpose and protection of the statute.

3. ATTORNEY AND CLIENT (§ 172) — LIEN — STATUTORY PROVISIONS.

Rev. St. 1909, § 964, giving a lien to the attorney who appears for a party in an action, a lien upon his client's cause of action or counterclaim and any verdict or judgment in his client's favor is remedial, and should be liberally construed.

4. ATTORNEY AND CLIENT (§ 180)—LIEN—NOTICE.

No notice of an attorney's lien was necessary where the attorney was one of those who brought the suit and appeared in the case.

5. ATTORNEY AND CLIENT (§ 177) — LIEN — PERSONS ENTITLED.

Where the attorney employed to bring an action, with the knowledge and consent of his client, employed another attorney to assist in bringing and prosecuting the action, both were attorneys for the client, and the second attorney was not acting merely as the agent of the first, and therefore each had a lien for his respective services.

6. ATTORNEY AND CLIENT (§ 186) — LIEN — DISCHARGE.

Under Rev. St. 1909, § 964, giving the attorney who appears for a party in an action a lien upon his client's cause of action or counterclaim, which attaches to a verdict or judgment in his client's favor, and cannot be affected by any settlement between the parties before or after judgment, where the attorney employed to bring an action, and who died pending the action, employed R., another attorney, to assist in bringing and prosecuting the action, with the client's knowledge and consent, payment of a judgment for plaintiff to R., though a valid payment of the judgment, did not discharge the lien of the original attorney for his services, as R. was not his agent, and, even if there was an agency, it was terminated by the attorney's death, and payment to a coattorney can no more defeat the lien than payment to the client.

7. ATTORNEY AND CLIENT (§ 190) — LIEN — PAYMENT OF JUDGMENT—LIABILITY OF DEFENDANT.

Rev. St. 1909, § 964, gives the attorney who appears for a party in an action a lien on his client's cause of action, which attaches to any verdict or judgment in his client's favor, and the proceeds thereof in whosesoever hands they may come, which cannot be affected by any settlement between the parties before or after judgment. Section 965 authorizes agreements for a portion of the recovery as compensation for services, and provides that such agreement from the date of service of notice thereof upon the defendant shall operate as a lien on the claim or cause of action, and the proceeds of any settlement thereof, that this cannot be affected by any settlement between the parties before suit is brought, or before or after judgment, and that any defendant who shall settle any claim or action with the client, without procuring the legal consent of the attorney, shall be liable to the attorney for his lien under such contract. Held that, while the statute does not expressly make a defendant liable for the amount of the lien where he settles after judgment, the lien is a valid assignment of the judgment pro tanto, and a defendant who pays the judgment without the attorney's consent is liable to the attorney as any other debtor who pays the creditor after notice that the debt has been assigned, and hence the attorney need not follow the proceeds of the judgment, but may hold the defendant liable.

8. ATTORNEY AND CLIENT (§ 190)—ENFORCEMENT BY ACTION.

Where a defendant pays a judgment against him without the consent of the plaintiff's attorney, the attorney may enforce his lien against defendant in an independent action, and need not proceed under a rule to show cause in the original action.

9. ATTORNEY AND CLIENT (§ 190) — LIEN — PAYMENT OF JUDGMENT—LIABILITY OF DEFENDANT.

That plaintiff or her attorneys, to whom a judgment was paid by defendant, were solvent, or that such attorneys still held the proceeds of the judgment, did not defeat defendant's liability to another attorney for plaintiff, without whose consent the judgment was paid.

10. ATTORNEY AND CLIENT (§ 190)—COMPENSATION—ENFORCEMENT— BURDEN OF PROOF.

In a suit to enforce the lien of an attorney for the plaintiff in an action, without whose consent defendant paid a judgment to two other attorneys for plaintiff, if the solvency of such attorneys or of plaintiff, or the fact that such attorneys still held the proceeds of the judgment, were defenses, the burden was on defendant to show such facts.

On Motion for Rehearing.

11. ATTORNEY AND CLIENT (§ 186)—LIEN—LIABILITY OF ADVERSE PARTY.

A defendant, against whom judgment is rendered, may avoid all responsibility for the amount of the lien of plaintiff's attorney on the judgment by paying the amount of the judgment into court, or depositing it with the clerk, and hence payment to two of plaintiff's counsel did not relieve defendant of liability to the executrix of a third attorney for plaintiff, who died pending the action, on the theory that it was paid to the only officers of the court authorized to receive it.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

Action by Etta C. Lawson, executrix of C. C. Lawson, deceased, against the Missouri & Kansas Telephone Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Sangree & Bohling and Walter H. Bohling, all of Sedalia, for appellant. George F. Longan, of Sedalia, and Gleed, Hunt, Palmer & Gleed, of Kansas City, for respondent.

TRIMBLE, J.

This is a suit by Etta C. Lawson, executrix of C. C. Lawson, deceased, against respondent for an attorney's fee under the Attorney's Lien Law (sections 964 and 965, R. S. Mo. 1909). A jury was waived, and the cause was submitted to the court upon an agreed statement of facts. According to it, the facts are that plaintiff is executrix as aforesaid; that said C. C. Lawson was a duly licensed and practicing attorney; that he died on February 26, 1913; that, if plaintiff is entitled to recover on the facts agreed upon, then plaintiff should have judgment for $187.50, and for costs. The agreed statement of facts then proceeds with still further facts which, stated as compactly as possible, are as follows:

(1) That in July, 1911, one J. Ida Allen met with an accident in Pettis county, Mo., and sustained certain alleged injuries claimed to have been caused by the negligence of respondent.

(2) That some time after her accident Miss Allen employed said C. C. Lawson, an attorney of the Pettis county bar, to institute suit against respondent to recover damages.

(3) That before said suit was filed C. C. Lawson, by and with the knowledge and consent of Miss Allen, associated with him for the purpose of assisting in bringing and prosecuting said suit R. S. Robertson, an attorney of the Pettis county bar.

(4) That on August 21, 1911, C. C. Lawson and R. S. Robertson, as attorneys for Miss Allen, instituted suit in the Pettis county circuit court against respondent; the petition being signed by C. C. Lawson and R. S. Robertson, attorneys for plaintiff.

(5) That on October 9, 1911, respondent herein (defendant in said suit) filed a demurrer to Miss Allen's petition. That said C. C. Lawson and R. S. Robertson argued said demurrer for the plaintiff in that case, and said demurrer was overruled. That the said defendant thereupon filed answer on December 4, 1911, and a reply was filed thereto signed "C. C. Lawson and R. S. Robertson, Attorneys for Plaintiff."

(6) That on December 20, 1911, the trial of that case was begun; but the court sustained an objection to the introduction of any evidence under the petition, and said C. C. Lawson and R. S. Robertson thereupon took leave to file an amended petition. That at said trial R. S. Robertson made the opening statement of the case for plaintiff to the jury, and conducted the examination of plaintiff up to the time the objection to the introduction of any evidence under the petition was sustained.

(7) That on February 5, 1912, the said C. C. Lawson and R. S. Robertson filed an amended petition in said cause.

(8) That from the time of instituting said suit up to February 26, 1912, the date of the death of said C. C. Lawson, C. C. Lawson appeared as one of the attorneys of record for Miss Allen in said case.

(9) That after C. C. Lawson's death, on February 26, 1912, Charles E. Yeater, an attorney of the Pettis county bar, became one of the attorneys of record for Miss Allen in her case against respondent, and continued to be an attorney of record to the close thereof.

(10) That on May 27, 1912, said Charles E. Yeater and R. S. Robertson, as attorneys for Miss Allen, filed a second amended petition in said cause, and the case was then continued to the October term, 1912.

(11) That R. S. Robertson and Charles E. Yeater tried the case, and obtained judgment for $750, October 9, 1912.

(12) That on October 10, 1912, the day following the rendition of judgment, the attorney for plaintiff in the cause now before the court met one of the attorneys for defendant in the Allen suit and casually...