Mayor v. Wilkerson

• Decision Date: 28 January 1941
• Docket Number: 29520.
• Citation: 111 P.2d 1069,188 Okla. 600,1941 OK 36
• Parties: MAYOR et al. v. WILKERSON et al.
• Court: Oklahoma Supreme Court

111 P.2d 1069

188 Okla. 600, 1941 OK 36

MAYOR et al. v. WILKERSON et al.

No. 29520.

Supreme Court of Oklahoma

January 28, 1941

Rehearing Denied April 1, 1941.

Syllabus by the Court.

1. Attorneys may join a suit against their client to recover attorney's fees and a suit against the adverse party as provided in Section 4206, O.S.1931, 5 Okl.St.Ann. § 8.

2. The means or method used by the adverse party to procure a dismissal of the action is immaterial, and any means or method producing the result constitutes a settlement or compromise as contemplated by said Section.

Appeal from District Court, Mayes County; Enloe V. Vernor, Judge.

Action to enforce attorney's lien by R. A. Wilkerson and another against Oliver D. Mayor and another. From a judgment for the plaintiffs, defendants appeal.

Affirmed.

Ernest R. Brown, of Pryor, for plaintiffs in error.

A. Lee Battenfield, R. A. Wilkerson, and Harve N. Langley, per se all of Pryor, for defendants in error.

CORN Vice Chief Justice.

This is an action to recover attorney's fee and to enforce attorney's lien. The basis of the action is written contract of employment, wherein Ida Mayor employed R. A Wilkerson and Harve N. Langley, attorneys, to prosecute a civil action against Oliver D. Mayor to recover property and estate inherited by her from her deceased son, Joseph H Mayor. The action filed by the attorneys was dismissed by Mrs. Mayor before it was prosecuted to final conclusion, and said attorneys brought this action against Ida Mayor and Oliver D. Mayor, jointly, under Section 4206, O.S. 1931, 5 Okl.St.Ann. § 8. Judgment was for the plaintiffs and the defendants brought this appeal. The parties are referred to herein as plaintiffs and defendants as they appeared in the trial court.

The defendants' several specifications of error are presented under the general proposition that the judgment is not supported by any competent evidence and is contrary to the law.

The argument of defendants rests upon the theory that the evidence is insufficient to show that a settlement or compromise of the cause of action or claim was made by the adverse party so as to fix liability upon him for the attorney's fee within the purview of the statute.

It appears from the record that after the petition of Ida Mayor was filed in the case against Oliver D. Mayor, an application for the appointment of a receiver for the partnership property of Joseph H. Mayor and Oliver D. Mayor, involved in said action, was presented to the county judge in the absence of the district judge from said county, and a hearing was in progress at the time of the dismissal of the action by the plaintiff, Ida Mayor. The action was dismissed without the consent of or notice to her attorneys, Wilkerson and Langley. The motion for dismissal was drawn by Oliver D. Mayor's attorney of record in the case, and the signing of the same by Ida Mayor was witnessed by Oliver D. Mayor himself, and by one of his employees, H. E. Copeland, and by Mary Copeland. Such facts and circumstances are sufficient to show that Oliver D. Mayor, the adverse party sought to be bound, had some kind of an understanding with his mother, Ida Mayor whereby she consented to and did dismiss the action. It is immaterial as to what the agreement between them was, which induced the dismissal of the action. Whatever it was, it was tantamount to a settlement or compromise of the cause of action or claim involved in the action. Such was the holding of this court in Bruce v. Anderson, 161 Okl. 248, 18 P.2d 877, wherein it is stated in the first paragraph of the syllabus as follows: "*** The means or method used to carry out the...