Lloyd v. Lloyd, 6014

• Decision Date: 05 January 1956
• Docket Number: No. 6014,6014
• Citation: 60 N.M. 441,292 P.2d 121,1956 NMSC 7
• Parties: Elizabeth Roloson LLOYD, Plaintiff-Appellant, v. Robert Leon LLOYD, Defendant below, and Dale B. Walker, Appellee here and attorney for Plaintiff below.
• Court: New Mexico Supreme Court

Page 121

292 P.2d 121

60 N.M. 441

Elizabeth Roloson LLOYD, Plaintiff-Appellant, v. Robert Leon LLOYD, Defendant below, and Dale B. Walker, Appellee here and attorney for Plaintiff below.

No. 6014.

Supreme Court of New Mexico.

Jan. 5, 1956.

F. L. Nohl, Albuquerque, for appellant.

Gallagher & Walker, Albuquerque, for appellee.

McGHEE, Justice.

The title of the case is strange but the method followed by Walker to collect a fee from his client Mrs. Lloyd presents a stranger picture.

Walker filed an action for divorce for Mrs. Lloyd against her husband Robert Leon Lloyd who entered his appearance in the case but did not answer. The parties to the divorce action became reconciled and Mrs. Lloyd directed Walker to dismiss her complaint but she apparently neglected to pay his fee, as so often happens where a wife and husband become reconciled.

Walker thereupon filed the following motion in the case:

'Comes now Dale Walker, of the firm of Gallagher & Walker, attorney for the Plaintiff herein and moves this Court for a hearing to establish the attorney's fees due the Plaintiff's attorney for an Order discharging the Plaintiff's attorney, and for an Order dismissing the Complaint filed herein, and for an Order demanding the presence of both the Plaintiff and Defendant at said hearing, and, as grounds for said Motion would show unto the Court, the Plaintiff herein has informed her attorney that the Complaint for Divorce has been settled, but has denied the claim for attorney's fees submitted by her attorney.

'Gallagher & Walker

'By s/ Dale B Walker

'Attorneys for the Plaintiff

'702 First National Bank Bldg.

'Albuquerque, New Mexico'

Thereupon the trial judge issued an order to show cause directed to the plaintiff and defendant in the divorce action:

'You and each of you are hereby directed to appear before this Court on the 10 day of August, at 9:30 A.M. and then and there to show cause, if any there may be, why the Motion filed herein by the attorney for the Plaintiff should not be granted, and, if you or each of you fail to appear, the Court shall consider the Motion ex parte and grant judgment accordingly.'

A copy of the motion and order was mailed to Mrs. Lloyd and service of copies was made on the attorneys for Mr. Lloyd.

The defendant Lloyd appeared at the time and place set for the hearing with his attorneys but Mrs. Lloyd did not appear, and at the conclusion of a hearing on the motion the trial judge signed the following instrument styled 'Order' which was entered on the records of the Court:

'This matter having come on for hearing on Motion filed herein by Dale B. Walker, of the firm of Gallagher & Walker, former attorney for the Plaintiff herein, to set his attorney fees and to have to Complaint dismissed, and the Plaintiff appearing not and the Defendant appearing in person and with his attorney, Harry Robins, of the firm of Robins, Bingham, Maloney & Klecan, and the Court having heard the testimony of the various witnesses, and being otherwise fully advised in the premises, Finds:

'1. That the Complaint should be dismissed without prejudice.

'2. That the Plaintiff's attorney, Dale B. Walker, should be awarded the sum of five hundred dollars ($500) as and for attorney fees.

'It Is Therefore Ordered, Adjudged, And Decreed that the Complaint should be and the same hereby is dismissed without prejudice.

'It Is Further Ordered, Adjudged, And Decreed that Dale B. Walker have a judgment against the...