Louisville & N. R. Co. v. Procter

• Decision Date: 08 June 1899
• Parties: LOUISVILLE & N. R. CO. v. PROCTER. [1]
• Court: Kentucky Court of Appeals

51 S.W. 591

LOUISVILLE & N. R. CO. v. PROCTER. ^[1]

Court of Appeals of Kentucky.

June 8, 1899

Appeal from circuit court, Warren county.

"Not to be officially reported."

Action by B. F. Procter against the Louisville & Nashville Railroad Company to enforce a lien on a judgment. Judgment for plaintiff, and defendant appeals; plaintiff prosecuting a cross appeal. Affirmed.

J. A Mitchell, H. W. Bruce, and Wm. Lindsay, for appellant.

Guy H Herdman and Grider & Moss, for appellee.

WHITE J.

In March, 1895, one Jordan Buford recovered a judgment for damages for personal injuries in the circuit court of Barren county for the amount of $1,000. In that action appellee Procter, was attorney for Buford, and in the judgment in favor of Buford this appears: "It is further ordered that B. F. Procter and Boles & Duff, attorneys for plaintiff have and retain a lien on this judgment for a reasonable attorney's fee." That case was prepared for appeal but in May, 1895, the same was compromised by the payment to Buford of $300, and the judgment was accordingly indorsed satisfied. Of this compromise the appellee, Procter, had notice, but declined to agree to same, but protested against its consummation by letter and telegram. In August, 1895, the appellee, Procter, brought this action against the appellant alone in the Warren circuit court, seeking to recover of appellant $600, the alleged reasonable value of appellee's services in behalf of Buford, alleging in the petition the judgment and the lien to appellee and the compromise by appellant with Buford without appellee's consent and over his protest. To this petition, which was at law, the appellant filed a special demurrer to the jurisdiction of the court, and also special demurrer because of a defect of parties; it being suggested by the demurrer that Jordan Buford, the plaintiff in the compromised judgment, and for whom the services were rendered, and Boles & Duff, co-counsel with appellee, were necessary parties. On the question of jurisdiction, the court overruled the demurrer and held it had jurisdiction, and on the question of defect of parties held that Boles & Duff, co-counsel, were necessary, but that Buford was not a necessary party. To these rulings exceptions were reserved. Appellee, Procter, in conformity to the ruling of the court, filed an amended petition, and Boles & Duff filed answer and asked the court to dismiss as to them, for the reason, as alleged, that the services tendered by them for Buford were separate and independent of any charge made or to be made by appellee, Procter, and they alleged that as to their claim the Barren circuit court had jurisdiction. This motion to dismiss as to Boles & Duff was sustained, and to this ruling appellant excepted. Appellant then filed an answer, admitting the rendition of the judgment in favor of Buford in Barren county and of the payment by appellant to Buford, in full satisfaction thereof, the sum of $300 and the costs of that action, and admitting that to the settlement and compromise appellant did not agree. Appellant alleges that, before the institution of the action by appellee as attorney for Buford, the appellee and Buford entered into a written contract and agreement as to the amount of the fee to be charged by appellee in case of recovery by action or compromise, and that by this contract, alleged to be in the possession of appellee, Procter was to receive an amount equal to one-half of the amount recovered by suit or compromise. Appellant then offered to confess judgment for that sum, the same to be in full of attorney's services for Buford in that action, and appellant, to settle the whole matter, made this answer a cross petition against Boles & Duff. Appellant then moved a transfer of the case to the equity docket, which was ordered by the court after the reply of appellee was filed. In the reply a contract was admitted to have been made, and it was set out in full. The material parts are: "I agree to give him [Procter] up absolute control of the claim, and not to interfere with its prosecution in any way, and not to entertain any proposition for a compromise, except through my said attorney, B. F. Procter, *** and for his services I agree to pay him a sum equal to the net one-half of any sum of money recovered by suit or compromise." Appellee, then, in the reply, alleged that he was...