Miedreich v. Rank
| Decision Date | 16 October 1907 |
| Docket Number | 5,947 |
| Citation | 82 N.E. 117,40 Ind.App. 393 |
| Parties | MIEDREICH v. RANK ET AL |
| Court | Indiana Appellate Court |
From Superior Court of Vanderburgh County; John H. Foster, Judge.
Action by Ada H. Rank against the Illinois Life Insurance Company. From a judgment of dismissal and an order overruling William P. Miedreich's motion for leave to prosecute the action for his benefit, as plaintiff's attorney, he appeals.
Reversed.
Louis J. Herman, for appellant.
Long & Price, and Spencer & Brill, for appellee company.
Ada H Rank, by William P. Miedreich, her attorney, sued the Illinois Life Insurance Company. Such proceedings were had as resulted in the filing of an amended complaint, to which the defendant on June 6, 1904, filed a demurrer for want of facts. No ruling was made thereon at the June term of the Superior Court of Vanderburgh County wherein such action was pending, and on September 5 following, being the first judicial day of the September term, the attorneys for the defendant brought into court and filed a paper signed by the plaintiff, directing the dismissal of the action. Her attorney thereupon objected to the dismissal of said action by the court, and filed a motion, supported by affidavit, for leave to prosecute the suit to final judgment. His objection and motion were overruled. The defendant's motion to dismiss was sustained, and a judgment rendered for the defendant, from which the attorney for the plaintiff appeals assigning error upon the action of the court as aforesaid. The averments of the plaintiff's amended complaint are to the effect that the defendant life insurance company was liable for the payment of a policy of insurance theretofore issued upon the life of her husband, John W. Rank, in which policy the plaintiff was named as beneficiary; that said Rank resided with his family in Evansville, and was in February 1894, temporarily, at St. Paul, Minnesota; that he went from St. Paul to New York City, and in August, 1894, wrote to the plaintiff that he was suffering from nervous headaches, was on the verge of a nervous collapse, and was desirous of coming home; that she forwarded money to him with which to pay his fare home, and has not had any tidings from him since, notwithstanding diligent inquiry and search upon her part; that she continued to pay the premiums on said policy until February, 1896, at which time, such payments being onerous, she surrendered said policy in consideration of a paid-up policy issued by said company for the sum of $ 598. It is averred that said paid-up policy was issued and accepted under a mutual mistake of fact; that both parties believed John W. Rank to be living, when, in fact, he was then dead; that the original $ 2,000 policy is in the defendant's possession, and for that reason a copy is not filed with the complaint. Performance of its conditions is averred, and a decree prayed for the cancelation of the paid-up policy, the reinstatement of the original policy, and for $ 2,000.
In the affidavit filed by Mr. Miedreich, it is stated that he was employed as an attorney by Mrs. Rank to prosecute her claim against the defendant upon the paid-up policy, and a written contract is set out, by the terms of which she agreed to pay him for his services therein an amount equal to twenty-five per cent of the amount recovered by judgment or compromise; that he investigated the legal propositions and facts involved, and gathered evidence by which to establish the death of John H. Rank, and came to the conclusion that the defendant was liable for the full amount of the original policy, whereupon a second agreement was entered into between him and Mrs. Rank, by which his fee was fixed at an amount equal to thirty-three and one-third per cent of the recovery, as aforesaid; that he thereupon instituted this action. He further sets out that the signature of his client to the written dismissal produced by defendant was secured by means of misrepresentations made to her by it; that it represented to her, she at the time residing at Nashville, Tennessee, that the case had been thrown out of court; that unless she settled she would have to pay the accrued costs, amounting then to $ 150, and which would amount to $ 175 by September 5, when in fact all the costs in the case amounted only to $ 12; that the defendant had notice of the contracts between him and Mrs. Rank; that the value of his service is $ 666, and that he has received no compensation whatever. The facts set up in the affidavit are not stated with the technical accuracy usual to a pleading charging fraud, but they are sufficient to make a prima facie case of fraud upon the attorney by the parties to the action. The paper purporting to evidence a settlement of the case bore the signature of the plaintiff, and was filed by the attorneys for the defendant. The attorney for the plaintiff was in court objecting to the proposed dismissal. His authority is not only presumed (Indiana, etc., R. Co. v. Maddy [1885], 103 Ind. 200, 2 N.E. 574), but conclusively established by written contracts of employment. No other attorney appeared for the plaintiff, and no suggestion that Mr. Miedreich's employment had terminated was made. Weeks, Attorneys at Law (2d ed., by Boone), § 220.
The authority which an attorney exercises under a general retainer is not the subject of uncertainty. "He is more than the mere agent as to the business committed to his care, he is the sole manager." Curtis v. Richards (1895), 4 Idaho 434, 40 P. 57.
Note to Cameron v. Boeger (1902), 93 Am. St. 165, 170. And see, 3 Am. and Eng. Ency. Law (2d ed.) 357, note; McConnell v. Brown (1872), 40 Ind. 384. The attorney for the defendant cannot be permitted to represent the opposite party. Bartholomew v. Union Trust Co. (1905), 36 Ind. App. 328. The plaintiff was present in the court by her attorney. He may have had "special instructions from his client" (McConnell v. Brown, supra), and the defendant could not compel a dismissal of the cause. If it had made a settlement "it would have to plead in bar of the action or its further prosecution." McConnell v. Brown, supra. It follows that the court erred in dismissing the action. There is no appeal, however, by the plaintiff, and the disposition of the appeal depends upon whether, upon the showing made, the action of the court in refusing to permit the prosecution of the action by the attorney was correct.
After several centuries of effort, the courts have come to the conclusion that an attorney may recover pay for services rendered. Interesting historical reviews of the subject are contained in McDonald v. Napier (1853), 14 Ga. 89, 104, and in Fischer-Hansen v. Brooklyn Heights R. Co. (1903), 173 N.Y. 492, 495, 66 N.E. 395. In Indiana he may, by virtue of the statute, acquire a lien upon the judgment which he obtains for his client. § 7238 Burns 1901, § 5276 R. S. 1881.
It has been decided that such lien is not his exclusive remedy, but that equity will, independent of the statute, create and enforce a lien in his favor. "The reason for this rule is that the services of the solicitor have, in a certain sense, created the fund, and he ought in good conscience to be protected." Puett v. Beard (1882), 86 Ind. 172, 44 Am. Rep. 280. See, also, Justice v. Justice (1888), 115 Ind. 201, 16 N.E. 615. A remarkably clear discussion of the subject is contained in the opinion of the court, written by Hackney, J., in Koons v. Beach (1897), 147 Ind. 137, 45 N.E. 601.
In New York, and other states, statutes have been enacted under which the attorney may acquire a lien upon his client's cause of action, but there is no such statute in this State, and it has been held that ordinarily an attorney acquires no lien for fees until after judgment. Hanna v. Island Coal Co. (1892), 5 Ind.App. 163, 51 Am. St. 246, 262, 31 N.E. 846.
It is not necessary to determine whether the contract between Mrs. Bank and appellant amounted to an equitable assignment in the latter's favor.
Generally speaking, the plaintiff has full power to compromise and settle his claim out of court and without the knowledge or consent of his attorney. Hanna v. Island Coal Co., supra; Young v. Dearborn (1853), 27 N.H. 324; Jackson v. Stearns (1906), 48 Ore. 25, 84 P. 798, 5 L. R. A. (N. S.) 390. Fischer-Hansen v. Brooklyn Heights R. Co., supra. The law favors...
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