Lewis v. Lewis
| Decision Date | 12 January 1948 |
| Docket Number | 20771 |
| Parties | LEWIS v. LEWIS et al |
| Court | Kansas Court of Appeals |
'Not to be published in State Reports.'
M. A O'Donnell and W. I. Potter, both of Kansas City, for appellant.
Clyde Taylor and David M. Proctor, both of Kansas City, for respondent.
This is an appeal from the circuit court of Jackson County. Appellant, William I. Potter, was an attorney of record in a suit filed by J. V. Lewis against his wife, Edith G. Lewis wherein he sought to recover the possession of certain insurance policies, certificates of stock and cash. That suit was tried and J. V. Lewis was successful, and his wife appealed from that judgment to the Supreme Court, which court, in due time, affirmed the judgment, Lewis v Lewis, 354 Mo. 415, 189 S.W.2d 557. In compliance with the order of the trial court, Mrs. Lewis had deposited with the clerk of that court certain insurance policies and certificates of stock. After the mandate of the Supreme Court was returned to the clerk of the circuit court, there were certain motions filed by the attorneys of record for J. V. Lewis. Generally speaking, those motions sought to ascertain the amount of attorneys' fee due the two attorneys of record and have the same declared a lien on the aforementioned property deposited with the circuit clerk. We shall discuss these motions more in detail. Suffice it to say at this time that appellant Potter's motion was sustained, and the trial court found that the reasonable amount due him, after allowing certain credits, was $ 1,155. From this judgment Potter perfected his appeal to this court.
He first contends that under the state of the pleadings on the question of attorneys' fees, and under all the evidence, the court should have allowed him a balance of $ 1,800. He bases this contention on the premise that he had alleged in his motion all essential matters and facts to charge that respondent, J. V. Lewis, impliedly agreed to pay him a reasonable amount for his legal services; that $ 2,170 was fair and reasonable, and that he had paid $ 370, leaving a balance due of $ 1,800; that Lewis, after having been notified of the filing of said motion, filed no responsive pleading denying said averments, or any averments, in appellant's said motion and, for that reason, said averments are admitted by the respondent; and that the trial court could not grant any affirmative relief to Lewis by reducing the claimed amount from $ 1,800 to $ 1,155. This necessitates a detailed statement of what the record discloses concerning the pleadings and proceedings thereon in the trial court.
David M. Proctor and appellant, William I. Potter, were members of the Bar in the State of Missouri. About October 1, 1943, J. V. Lewis employed Senator Proctor to represent him in his marital difficulties, and for a period of about four months Proctor gave considerable of his time in an attempt to settle the controversy between Lewis and his wife. Being unable to adjust the difficulties by amicable means, Proctor decided to resort to litigation and invited appellant, Potter, to assist him in looking up the law, preparing pleadings and investigation of evidence. Considerable work was done by both attorneys and, in due time, a suit was filed to recover certain property from Mrs. Lewis. Both attorneys signed all pleadings and appeared in the trial court. About the time the mandate of the Supreme Court, above referred to, was received by the clerk of the trial court, Lewis and Proctor learned that appellant, Potter, was claiming that Lewis owed him an attorney's fee. Shortly thereafter, Proctor filed in the trial court, in the case of Lewis v. Lewis, a motion seeking to have certain of the personal property released from any attorney's lien and delivered to Lewis; and also seeking to have the court determine the attorney's fee due to Potter, if any. The theory of Proctor's motion was that he, having employed Potter to assist him, was responsible to Potter for any fee due him, and that Lewis had never employed Potter and was not indebted to him for an attorney's fee. This motion was signed by David M. Proctor and David M. Proctor, attorney for plaintiff (J. V. Lewis). On November 10 and 15, 1945, a hearing was had on this motion, at which Proctor and Potter both appeared and introduced considerable evidence. Proctor's evidence was to the effect that he had employed Potter to assist him in the Lewis case, and that he alone was liable for any fee due Potter, and testified that Potter was entitled to a fee of $ 1,525, of which amount $ 370 had been paid, leaving a balance due of $ 1,155, which amount was tendered Potter. There was also evidence by two practicing attorneys that a reasonable fee for Potter, under the facts detailed, would be approximately $ 1,250. Potter contended that a reasonable fee for him would be $ 2,170, of which amount $ 370 had been paid him by Proctor, leaving a balance of $ 1,800.
However, during the hearing on the Proctor motion, Potter orally challenged the jurisdiction of the court to determine the amount of his fee and the question of his lien in the hearing on the Proctor motion. This contention was based on the theory that Lewis was indebted to Potter, and that any controversy between Proctor and Potter concerning a division of the fee could not be disposed of in the suit of Lewis v. Lewis, and that he, Potter, intended to file a motion in that suit seeking to recover a reasonable attorney's fee from Lewis and have the same declared a lien on the personal property deposited with the clerk of the trial court. The court did not rule on the question of its jurisdiction, and took under consideration the Proctor motion and evidence, and asked Potter if he intended to file his motion soon. On November 23, 1945, Potter filed his motion 'to ascertain attorney's fee and enforce lien.' It is quite lengthy and we deem it unnecessary to set it out in full. The basis of the motion is that Potter had rendered valuable legal services to Lewis, and that the same were rendered with the knowledge, acquiescence and cooperation of Lewis, and that there was an implied agreement that he be paid a reasonable sum for such services, which he alleged to be $ 2,170, of which amount $ 370 had been paid, leaving a balance due of $ 1,800. But the motion goes further and controverts many, if not all, of the material allegations of the Proctor motion.
On December 8, 1945, a hearing was had on the Potter motion and the record recites that the petitioner (Potter) appeared in person and by attorney, and that plaintiff (Lewis) appeared by his attorney, David M. Proctor. Potter testified at considerable length concerning the work done and services rendered in the preparation and trial of the Lewis suit, and that a reasonable fee for such services would be $ 2,170, of which he had been paid $ 370. As a part of that hearing, all the evidence and proceedings had at the hearing on the Proctor motion was, by agreement of the parties, introduced in evidence and became a part of the record in the hearing on the Potter motion. Furthermore, during the course of the trial on the Potter motion, Lewis, by his attorney, Proctor, filed a pleading captioned 'Suggestions by plaintiff (Lewis) and David M. Proctor, his attorney, in opposition to motion of William I. Potter to ascertain attorney's fee and enforce lien.' This motion states that the motion of Potter fails to plead or disclose any facts or circumstances entitling him to an attorney's lien on the proceeds of the judgment in the case of Lewis v. Lewis because, The motion also states that the petitioner (Potter) is not entitled to have the court ascertain his compensation for alleged services because of additional reasons, which we think unnecessary to set out in full. That motion or pleading, filed by Lewis and Proctor, prayed the court to overrule Potter's motion 'and for such further orders, judgments and decrees as the court may deem proper in the premises.'
At the conclusion of the hearing on the Potter motion, the cause was taken under advisement until January 18, 1946, at which time the court announced it would sustain the Potter motion, and found that a fair and reasonable fee for his services was $ 1,525, of which amount $ 370 had been paid, leaving a balance due of $ 1,155. The court expressed doubt whether Potter was entitled to an attorney's lien on the fund remaining in the hands of the clerk, but did order that he had a right to recover that amount out of the sum deposited with the clerk. Immediately after the court made this announcement, Mr Potter called to the court's attention that there were two other motions pending which had not been disposed of. One was what has been referred to as the 'Proctor motion,' and the other was the motion or pleading filed during the hearing on the Potter motion. Thereupon the court overruled the Proctor motion and stated, with reference to the Lewis and Proctor 'suggestions' or motion, that such pleading ...
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