Miles v. Krainik

• Decision Date: 24 February 1969
• Docket Number: Docket No. 3834,No. 3,3
• Citation: 167 N.W.2d 479,16 Mich. App. 7
• Parties: R. L. MILES, Plaintiff-Appellant, v. Jane KRAINIK, Executrix of the Estate of Benjamin G. Tracey, Deceased, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 479

167 N.W.2d 479

16 Mich.App. 7

R. L. MILES, Plaintiff-Appellant, v.Jane KRAINIK, Executrix of the Estate of Benjamin G. TraceyDeceased, Defendant-Appellee.

Docket No. 3834.

Court of Appeals of Michigan, Division No. 3.

Feb. 24, 1969.

Released for Publication May 15, 1969.

Robert L. Miles, Big Rapids, for plaintiff-appellant.

Hughes & Trucks, Clare, for defendant-appellee.

Before QUINN, P.J., and V. J. BRENNAN and McGREGOR, JJ.

QUINN, Presiding Judge.

Plaintiff, an attorney, filed this action to have an attorney's lien declared in his favor against funds held by defendant as executrix of the estate of Benjamin G. Tracey, deceased.Defendant moved for summary judgment under GCR 1963, 117, on the basis plaintiff failed to state a claim upon which relief could be granted.The trial court granted the motion on the basis plaintiff had a remedy by filing a claim against the estate of which defendant is executrix.Plaintiff's motion for rehearing was denied, and he appeals.

By writing dated July 17, 1963, decedent employed plaintiff to represent him in any and all matters pertaining to the estate of Emmett Everett Tracey, deceased, including 'the filing of any claim in said estate which I may be entitled to file therein and to take any and all steps and commence any and all proceedings in or out of court which may be deemed necessary or desirable by my said attorney to protect my interests and to obtain my just entitlement out of said estate, and out of my business transactions with the said Emmett Everett Tracey during his lifetime'.Benjamin and Emmett were brothers.

Extensive investigation by plaintiff disclosed no enforceable claim in favor of Benjamin against the estate of his deceased brother, and no claim was filed.

Prior to distribution of Emmett's estate, Benjamin died.Plaintiff so advised counsel for the fiduciary of Emmett's estate and requested counsel to protect plaintiff's attorney fee at time of distribution.Despite this request, the distributive share of Benjamin in the estate of Emmett in the amount of $3,866.28 was sent to defendant.This is the fund on which plaintiff seeks to have a lien declared by this action.

The law creates the lien of an attorney upon the judgment or fund resulting from his services.Wipfler v. Warren(1910), 163 Mich. 189, 194, 128 N.W. 178;Shank v. Lippman(1931), 253 Mich. 451, 235 N.W. 216.It is this principle that requires reversal of this case rather than the principle relied on by pl...