McCallum v. Baltimore & O.R. Co., Gen. No. 41550.

• Court: United States Appellate Court of Illinois
• Writing for the Court: DENIS E. SULLIVAN
• Citation: 33 N.E.2d 920,310 Ill.App. 189
• Parties: MCCALLUM v. BALTIMORE & O. R. CO.
• Docket Number: Gen. No. 41550.
• Decision Date: 23 April 1941

310 Ill.App. 189
33 N.E.2d 920

MCCALLUM
v.
BALTIMORE & O. R. CO.

Gen. No. 41550.

Appellate Court of Illinois, First District, Third Division.

April 23, 1941.

Appeal from Superior Court, Cook County, Paul McWilliams, Judge.

Action by William Wallace McCallum against the Baltimore & Ohio Railroad Company to enforce a lien for attorney's fee. Judgment for defendant, and plaintiff appeals.

Affirmed.

[33 N.E.2d 920]

Wm. Wallace McCallum and Murphy O. Tate, both of Chicago, for appellant.

Rawlins & Wright and Erich W. Lademann, all of Chicago, for appellee.

DENIS E. SULLIVAN, Justice.

Plaintiff, who is a practicing attorney, brought suit to enforce an alleged attorney's lien under a contract which he alleges he had with one Lucy Burton, administratrix, to represent her, as attorney, in a claim against the Baltimore & Ohio Railroad Company in an endeavor to recover damages for the death of her husband, Harvey Burton. The cause was tried without a jury and judgment was entered by the trial judge in favor of defendant, from which judgment plaintiff brings this appeal.

It is alleged that the contract made between plaintiff and his client was executed at Chicago, Illinois. There does not appear to be any dispute as to the plaintiff having a contract under the attorneys' lien law with his client nor that the lien was not in proper form and was served upon the defendant corporation. Defendant is a transportation line which services several states. There does not appear to be any dispute as to the facts, except in a few instances, to which we shall later refer.

It appears that after the contract was made and after plaintiff had investigated the case and prepared to file suit and was negotiating in an attempt to make a settlement with said defendant railroad company, that said defendant railroad company, through some of its agents, met plaintiff's client in Cincinnati, Ohio, and without the knowledge of plaintiff herein, agreed upon a certain sum of money as a settlement in the case.

The cause of action herein grew out of the death of one Harvey Burton, husband of Lucy Burton, plaintiff's client, which death it is alleged was the result of injuries sustained by him while employed by defendant railroad, on August 24, 1937, at or near Canelburg, Indiana, through which the railroad of the defendant runs and negligence was charged on the part of the defendant railroad company.

[33 N.E.2d 921]

It further appears that thereafter a suit was commenced in Davis County, Indiana, by an attorney other than plaintiff herein and a judgment was entered in favor of plaintiff Lucy Burton and against the defendant railroad company for the sum of $8,250; that the proceedings in the court of Indiana and the settlement of the cause by the defendant railroad company, up to the point of judgment, were all transacted without either the knowledge or consent of plaintiff; that thereafter the defendant railroad company paid to the clerk of the Indiana Court the sum of money which had been agreed upon, namely, $8,250 and for which judgment had been entered by said Indiana Court. It appears from the record in that case the order directed the money to be paid to the said clerk of the Indiana Court and that the claim of plaintiff McCallum as claimant for part of said money was made a matter of record for the first time; that the money was ordered to be impounded with the clerk and that notice be served upon McCallum, plaintiff herein; that said notice so ordered was mailed by the said clerk of the Indiana Court and immediately thereafter one of the Chicago attorneys for defendant railroad company, served a similar notice upon plaintiff McCallum, as provided by the Statutes of Indiana. The notices in substance stated that on a day and date named therein, the Court in Indiana would proceed to adjudicate the rights of the plaintiff McCallum for any attorney's fees or claim which he might have against the defendant railroad company or the funds in the hands of the Clerk of said Court. It appears that plaintiff herein did not appear in the Indiana Court. The notice which was served upon plaintiff McCallum, reads as follows:

“You are hereby notified that on the 20th day of September, 1937, the following proceedings were had in the Daviess Circuit Court of Daviess County, Indiana, to-wit:

+-----------------------------------------------------------------------------+
                ¦“ ‘Lucy Burton, as Administratrix of the Estate of Harvey Burton, ¦)¦ ¦
                ¦Deceased, Plaintiff, ¦ ¦ ¦
                +--------------------------------------------------------------------+-+------¦
                ¦v. ¦)¦No. ¦
                ¦ ¦ ¦19,456¦
                +--------------------------------------------------------------------+-+------¦
                ¦The Baltimore & Ohio Railroad Company and the Baltimore & Ohio ¦)¦ ¦
                ¦Southwestern Railroad Company, Defendants. ¦ ¦ ¦
                +-----------------------------------------------------------------------------+
                

“ ‘Comes now the plaintiff by Joseph P. Smith and Herbert W. Lane, her attorneys, and also come the defendants, by Allen, Hastings & Allen, their attorneys. And now the defendants file their joint and several answers in two paragraphs to the plaintiff's complaint herein. And now the plaintiff files her reply in general denial to the second paragraph of defendant's said answer, putting this cause at issue.

“ ‘And now by agreement of the parties this cause is submitted to the court, without the intervention of a jury, for trial, finding and judgment.

“ ‘The court having heard the evidence and being fully advised in the premises, finds for the plaintiff, that the material averments of the complaint are true and that the plaintiff should recover of and from the defendants on the complaint sued upon herein the sum of Eight Thousand Two hundred fifty dollars ($8,250.00), together with the costs of this action.

“ ‘The court further finds for the defendants on their second paragraph of answer herein and that Joseph P. Smith and Herbert W. Lane are the attorneys for the plaintiff herein and as such will be entitled to file and assert liens against any judgment that may be rendered against the defendants in this cause of action, and that William Wallace McCallum of Chicago, Illinois, has notified the defendants that he is employed by the plaintiff to prosecute her claim against the...