Mills v. Metropolitan Street Railway Co.
| Decision Date | 10 April 1920 |
| Parties | CLAUDE V. MILLS; M. CORSON GILLHAM, Petitioner for Attorney's Fee, v. METROPOLITAN STREET RAILWAY COMPANY; R. J. DUNHAM and FORD S. HARVEY, Receivers, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. T. J. Seehorn, Judge.
Reversed and remanded.
Richard J. Higgins and Roscoe P. Conkling for appellants.
(1) The court erred in setting aside the judgment entered of record on October 17, 1917. (a) This was an action at law, and after the final judgment of October 17, 1917, the court was without authority to set aside the judgment for the purpose of permitting the amendment of the motion, the introduction of further evidence, and then to enter a new judgment for the petitioner. The judgment of October 17, 1917, was a final judgment in a law case. The court had authority only to sustain petitioner's motion for a new trial, or to let the judgment of October 17, 1917, stand. The court did neither of these two things. Akins v. Hicks, 109 Mo.App. 95; State ex rel. v. Horton, 161 Mo. 671; Patrick v. Abeles, 27 Mo. 184; State ex rel. v Evans, 176 Mo. 310; Walker's Admrs. v Walker, 25 Mo. 367; Shell v. Mo. Pac. Railroad, 132 Mo.App. 528; Miller v. Railroad, 162 Mo. 433; Wait v. Ry. Co., 204 Mo. 491; R. S. 1909, sec. 2022. (b) Respondent's own testimony conclusively shows, the jury found, the trial court approved, and the trial court still approves, that the respondent abandoned the cause of action. By his own actions respondent is estopped from asserting or claiming any lien. Mfg. Co. v. Sharples Co., 98 Mo.App. 207; Miller v. Chinn, 203 S.W 212; Mineral Water Co. v. Fishman, 127 Mo.App. 211; Chouteau v. Iron Works, 94 Mo. 395; Seligman v. Rogers, 113 Mo. 642; Palais du Costume Co. v. Beach, 114 Mo.App. 462; Blanton v. King, 73 Mo.App. 148. (2) The court erred in permitting respondent, after trial, and after judgment for these appellants, to amend his motion by adding a prayer for general relief. (a) There was no warrant or authority in law for such amendment at that time. Sec. 1851, R. S. 1909. (b) The amendment amounted to a departure from the original cause of action declared upon. Scoville v. Glassner, 79 Mo. 449; Pruitt v. Warren, 71 Mo.App. 84; Weissenfals v. Cable, 208 Mo. 515; St. L. v. Wright, 210 Mo. 501; Carter v. Dilley, 167 Mo. 564; Lumpkin v. Collier, 69 Mo. 170. (3) The court erred in permitting any evidence of the value of the services of respondent, because respondent declared upon a contract, and the motion was founded upon the attorney's lien statute. Recovery cannot be had upon the quantum meruit. White v. Wright, 16 Mo.App. 551; Fox v. Pullman Co., 16 Mo.App. 127; Houck v. Bridwell, 28 Mo.App. 648; Stanley v. Whitlow, 181 Mo.App. 461; Shoemaker v. Johnson, 200 Mo.App. 209. (4) The court had no jurisdiction. There was no money judgment entered against appellants in the original cause. The final judgment in the original cause was a judgment of dismissal. There was no money judgment in the original cause to which the lien, if established in this proceeding, could attach itself. This proceeding, to establish a lien, should have been an independent action and not a proceeding by motion in the original cause. Wait v. Ry. Co., 204 Mo. 501; O'Connor v. Transit Co., 198 Mo. 643; Taylor v. Transit Co., 198 Mo. 730. (5) The court erred in setting aside the judgment rendered October 17, 1916, in permitting petitioner to amend his motion, in refusing to recall the jury sworn and impaneled in the cause on October 16, 1917, in permitting petitioner to introduce new and further evidence, thereby depriving these appellants of their property without due process of law, in violation of Section 30, Article II, of the Constitution of Missouri. Jones v. Yore, 142 Mo. 44; State ex inf. v. Shepherd, 177 Mo. 205.
Hutton, Davis, Nourse & Bell for respondent.
(1) The court did not err in setting aside its judgment of October 17th, 1917, on its own motion, being the same term at which the judgment was entered. Modern Woodmen v. Angle, 127 Mo.App. 106; Buck v. Buck, 267 Mo. 663. (2) The statutes allowing attorney's liens made no provision for a mode of procedure but our appellate courts have given relief and have provided that the attorneys ought to be deprived of his fee could file a motion in clients case asking that fees be taxed against defendant or that he can file an independent suit. Taylor v. Transit Co., 198 Mo. 730; Stevens v. Met. St. Ry. Co., 157 Mo.App. 656; Curtis v. Met. St. Ry. Co., 118 Mo.App. 355; Nicola v. American Car & Foundry Co., 185 Mo.App. 285; Wait v. Railroad Co., 204 Mo. 503. (3) It was not obligatory on the trial court to hear evidence on the reasonable services of Gillham and it was not obligatory for the trial court to adopt the evidence that it did hear. The trial court did not grant a new trial but offered to do so if defendants requested it. Respondent respectfully submits that appellants were not deprived of any of their constitutional rights and moves that their appeal be dismissed.
RAGLAND, C. Brown and Small, CC., consur. Woodson, J., absent.
This is an action based on the Attorney's Lien Statute. M. C. Gillham, hereinafter designated the plaintiff, is, and for a number of years has been, a member of the Kansas City Bar, actively engaged in the practice of law. Some time prior to February 8, 1916, one Mills sustained personal injury through the negligence of defendants while a passenger on their cars. On the last named date he employed plaintiff as his attorney to commence and prosecute a suit for the recovery of his damages. By the contract of employment it was agreed between plaintiff and Mills that plaintiff should have for his services twenty per cent of any judgment, settlement or compromise obtained or effected, disposing of Mills, cause of action. Pursuant to his employment, plaintiff prepared and, on February 10, 1916, filed with the Clerk of the Circuit Court for Jackson County, a petition by which an action was commenced by Mills against these defendants for the recovery of $ 30,000 as the damages sustained by him on account of their negligent acts. Later plaintiff appeared in the cause for Mills, the plaintiff therein, as his attorney, at the hearings on defendants' demurrer to the petition and on their motion to make the same definite and certain, as well as at the taking of depositions on the part of defendants. He also spent considerable time in the preparation of the case for trial. There is no suggestion of a lack of either diligence or skill in plaintiff's conduct of the case. But, apparently, some outside influence operating on the mind of Mills led him to believe that he had made a grievous mistake in not employing a certain other attorney He thereupon employed the other, and at the latter's suggestion Mills wrote plaintiff a letter, in which he in effect stated that at the time he talked to plaintiff (at the hospital) with reference to employing him he, Mills, was not in a condition mentally to make a contract, and that in any event plaintiff was employed merely to file the petition and that he must take no further action, as other counsel had been retained to try the case. Plaintiff construed this letter to mean the Mills had secured another lawyer to conduct the trial of the cause in court and not as terminating his employment. He continued to accept service of notice to take depositions served by opposing counsel and otherwise continued in active charge of the case. This fact coming to the attention of Mills, on July 31, 1916, he wrote plaintiff a letter, peremptorily directing him to cease meddling with the case and threatening to take the matter before the local bar association, if he did not do so. Plaintiff then awoke to a realization that he had been replaced by another attorney and did nothing further in the case. Later Mills, through the attorney last employed by him, and without the knowledge of plaintiff, effected a settlement of his case, by which he received the sum of $ 5500, and on November 24, 1916, a stipulation was filed in the cause by which it was agreed that the same should be dismissed at defendant's cost. Judgment was entered in accordance with the stipulation. Just a few days before the settlement was effected, Mills's attorney then in charge of his case wrote plaintiff offering the latter $ 50 in full compensation for his services therein. Plaintiff not replying, the offer was withdrawn and the settlement proceeded to a consummation without further effort on the part of anyone connected with the case to secure a release of plaintiff's lien on the cause of action, if he had one.
On December 20, 1916, plaintiff filed with the Clerk of the Circuit Court for Jackson County a paper, which he denominated a motion, and which, by its caption and prayer purported to be in the case of Claude V. Mills, plaintiff, v. The Metropolitan Street Railway Co., R. J. Dunham and Ford Harvey, Receivers, defendants. In this paper plaintiff styled himself a "petitioner." But whatever may be its proper characterization, it is alleged in this pleading that prior to February 8, 1916, one Claude V. Mills, having theretofore sustained injuries through the negligence of defendants while a passenger on their cars, and having a subsisting cause of action for damages for such injuries, on that date employed plaintiff ("your petitioner") as an attorney-at-law to prosecute a suit for the recovery thereof; that it was agreed between plaintiff and said Mills that for his services in that behalf plaintiff should have twenty per cent of whatever amount was realized on the cause of action, whether by judgment, compromise or settlement; that plaintiff, pursuant to his employment, filed a...
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