Leahy v. Lemp

• Decision Date: 03 June 1919
• Docket Number: No. 15423.,15423.
• Citation: 214 S.W. 228
• Parties: LEAHY et al. v. LEMP.
• Court: Missouri Court of Appeals

214 S.W. 228

LEAHY et al. v. LEMP.

No. 15423.

St. Louis Court of Appeals. Missouri.

June 3, 1919.

Rehearing Denied June 27, 1919.

Appeal from St. Louis Circuit Court; Wm. T. Jones, Judge.

"Not to be officially published."

Action by John S. Leahy and others against Lilian H. Lamp. Judgment for plaintiffs, and defendant appeals. Affirmed.

O'Neill Ryan, of St. Louis, for appellant.

Chas. P. Williams, of St. Louis, for respondents.

ALLEN, J.

The petition herein alleges that since December 15, 1911, plaintiffs have been engaged in the practice of law in the city of St. Louis, as partners, under the firm name of Leahy, Saunders & Barth, and that plaintiff Leahy was, at all the times mentioned in the petition, and prior to the formation of said partnership, engaged in the practice of law in said city.

And for their cause of action plaintiffs aver that in October, 1907, plaintiff Leahy, being so engaged in the practice of law, was consulted by the defendant, Lilian IL Lemp, "in relation to the conduct of her husband, William J. Lemp, Jr., in reference to retaining the custody of her son William"; that defendant at the time informed Leahy that she had previously employed Judge Daniel Dillon, then a practicing lawyer in said city, in respect to the matter mentioned; and that she requested Leahy to become associated with and to co-operate with said Dillon in regard to the "differences" then existing between defendant and her husband, with reference to securing alimony for defendant and the custody of the only child of defendant and her husband. It is averred that Leahy accepted the employment, and pursuant thereto had many consultations with defendant and with her father and other persons in reference to said matters; that these conferences began in October, 1907, and continued at various intervals until May, 1913; that in February, 1908, defendant's husband instituted a habeas corpus proceeding against defendant in the St. Louis Court of Appeals to secure the custody of said child; that Leahy co-operated with said Dillon in protecting defendant's rights in said proceeding, and succeeded in "reaching an arrangement" whereby defendant's husband began to pay, at regular intervals, money for the maintenance of defendant and her child, and succeeded in having the child remain in defendant's custody; that Leahy, co-operating with Dillon, then prepared for defendant a petition for divorce against her husband, and filed the same in the circuit court of the city of St. Louis on March 8, 1908; that thereafter Leahy, co-operating with Dillon, prepared the divorce case for trial, took depositions in various places, had many conferences, consultations, and interviews, filed various motions in the proceeding, and made trips with defendant's father to certain cities, in aid of defendant's said suit, co-operated with Dillon in the trial of said cause, and examined and cross-examined many witnesses therein; that defendant's husband, defendant in said divorce suit, filed an answer therein together with a cross-bill praying for a divorce from this defendant, plaintiff therein, and that he be awarded the absolute custody of the child; and that the trial of the divorce suit consumed a period of about eight days.

It is further averred that as a result of the trial in the circuit court defendant herein obtained a decree of divorce from her husband and a judgment for alimony in the slim of $6,000 per year, payable in quarterly installments, with the custody of her child; that, being dissatisfied with the allowance of alimony, the defendant herein directed plaintiff Leahy and said Dillon to appeal the cause to the Supreme Court of this state, and that they thereupon "took the necessary steps and prepared all the necessary papers for said appeal," including a bill of exceptions covering about nine hundred printed pages; that pending that appeal the defendant herein, contrary to the advice of her said counsel, declined and refused to permit the father, said Wm. J. Lemp, Jr., to see the child; that the said divorce decree of the circuit court provided that the father should have the companionship of the child at certain intervals, but when this defendant refused to comply with that portion of the decree the father had a citation issued directing her to appear and show cause, if any she had, why she should not be punished for contempt; that plaintiff Leahy co-operated with Dillon in representing this defendant at that hearing, prepared argument and authorities in support of her contention, and finally succeeded in "making an arrangement" whereby defendant was not punished for contempt, and succeeded in inducing her to permit the father to see the child.

It is further averred that upon the said appeal to the Supreme Court the cause was assigned to division No. 1 of that court and set for argument in April, 1912; that prior to the argument thereof plaintiffs, composing said firm of Leahy, Saunders & Barth, and the said Dillon, prepared a statement, brief, and argument, and subsequently prepared a reply argument therein; that the case was orally argued in said division No. 1 of the Supreme Court by Judge Wm. C. Marshall, who had been retained therein at the express instance and request of this defendant, and by Judge Dillon and plaintiff Leahy, in behalf of this defendant; that in said division No. 1 of the Supreme Court a "decision" was rendered in the cause on November 30, 1912, "the four judges of said division No. 1 dividing equally," and the cause was thereupon transferred to the court en banc, where it was set for hearing and was again orally argued by said Marshall and plaintiff Leahy for the defendant herein; that prior to the argument of the cause en banc an additional brief was filed in behalf of said Wm. J. Lemp, Jr., and counsel for this defendant prepared and filed a reply brief.

It is further averred that the Supreme Court en banc, on May 15, 1913 (249 Mo. 295, 155 S. W. 1057, Ann. Cas. 1914D, 307), rendered a decision in the cause, reversing the judgment of the circuit court and awarding the plaintiff therein, defendant in this proceeding, gross alimony in the sum of $100,000 and also the custody of the said child, subject to the right of the father to see the child at stated periods; and that said gross alimony of $100,000 has been paid to this defendant.

It is further averred that plaintiff Leahy and the said firm of Leahy, Saunders & Barth, in rendering the services aforesaid, spent parts of many months, and that tie services were long continued and exacting in character; that the reasonable value thereof is the sum of $6,500; that they desire to give defendant credit for the sum of $1,500, being the amount paid to plaintiff Leahy under an order of the circuit court in the divorce proceeding awarding counsel fees to Dillon and Leahy in the sum of $3,000, which amount was paid by said Wm. J. Lemp, Jr., under said court order, and was divided equally between Dillon and Leahy.

It is further alleged that plaintiff Leahy and the firm of Leahy, Saunders & Barth expended certain sums for expenses in the course of the entire proceeding mentioned, the alleged items thereof totaling $200.04; that on May 27, 1913, they made demand upon defendant for the sum of $5,000 and the expenses aforesaid. And it is alleged that all of the interest of plaintiff Leahy in and to the said demand has been assigned to said firm of Leahy, Saunders & Barth, plaintiffs herein.

Judgment is prayed for the sum of $5,200.04, with interest from May 27, 1913.

The answer, after admitting the copartnership of plaintiffs, denies all the other allegations of the petition. It then alleges that defendant, having marital difficulties which involved the custody of her child and the maintenance and support of herself and said child, employed said Dillon "and later associated with him as her counsel the plaintiff John S. Leahy"; that Leahy agreed to accept in payment for all of his services one-half of such sum as he and Dillon might receive through allowances made by the court, to be paid by defendant's husband as counsel fees, in the event that she was obliged to bring a suit for divorce. It is alleged that such suit became necessary and was brought for her by Dillon and Leahy; that the sum of $3,000 was allowed by the court for counsel fees for the plaintiff therein, this defendant, of which sum Leahy received one-half, or $1,500, paid by the defendant in the divorce proceeding; that further applications were made to the trial court by Dillon and plaintiff Leahy for allowances for fees, but were denied by the court; that when the cause was in division No. 1 of the Supreme Court, on appeal, an additional allowance of $5,000 was made for plaintiff therein, this defendant; and, although plaintiff Leahy moved for an allowance when the case was in the Supreme Court en banc, no allowance was made. Defendant avers that she made no arrangement of any kind with plaintiffs, constituting the firm of Leahy, Saunders & Barth, to act as her counsel; that the only one of plaintiffs whom she employed was plaintiff Leahy, and his employment by her was under the circumstances and upon the conditions set forth in the answer. Further answering, defendant says that all services rendered to her have been fully paid and satisfied; that before the filing of the divorce suit she asked plaintiff Leahy for a statement of expenses incurred by him on her account, but he did not give her such statement; and that she only learned through plaintiff's petition the amount claimed on that account. Defendant says that she "makes no question" as to the items totaling' $200.04 set forth in the petition, and admits that she is indebted to plaintiff Leahy for said sum or to the plaintiff firm if plaintiff Leahy has assigned said account thereto. The trial, before the court and a jury, resulted in a verdict in plaintiff's favor for $3,200.04, with interest on $3,000 at 6 per cent per annum...