Modern Woodmen of America v. Cummins

• Decision Date: 02 December 1924
• Citation: 268 S.W. 383,216 Mo.App. 404
• Parties: MODERN WOODMEN OF AMERICA, a Corporation, Plaintiff, v. OTTILIE CUMMINS, (Respondent),
• Court: Missouri Court of Appeals

268 S.W. 383

216 Mo.App. 404

MODERN WOODMEN OF AMERICA, a Corporation, Plaintiff, v. OTTILIE CUMMINS, (Respondent), ETHEL STOUDENIMIRE, EDITH CUMMINS, JOHN E. CUMMINS, EDWIN CUMMINS SHAW, a minor, THELMA M. ROBERTSON, a minor, RUTH V. ROBERTSON, a minor, and C. J. ANDERSON, (Appellant), Defendants. *

Court of Appeals of Missouri, St. Louis

December 2, 1924

Rehearing Denied 216 Mo.App. 404 at 410.

Appeal from the Circuit Court of the City of St. Louis.--Hon Charles B. Davis, Judge.

AFFIRMED.

Judgment affirmed.

C. J Anderson (appellant), Pro Se.

H. A. Loevy of Counsel.

(1) The only questions involved here are the issues joined by the pleading on the part of the appellant and respondent herein, all other questions having been disposed of by the decree of the trial court. (2) These issues are made up by the interplea of appellant and the general denial filed thereto by respondent. (3) The respondent consented to the jurisdiction of the court by answering. (4) The undisputed evidence in this case shows respondent to be indebted to appellant for a balance of $ 700 and the finding of the court should have been in his favor for said amount. Dempsey v. Dorrance, 151 Mo.App. 429. (5) Even if this court should find that appellant has no common law lien against the fund found by the court to be payable to the respondent herein; yet, this is a suit in equity, and the court having acquired jurisdiction thereof will dispose of all questions involved and will do complete justice even though required to adjudicate matters of law. Waddell v. Frazer, 245 Mo. 391; Patter v. Whitten, 161 Mo.App. 118; School Dist. No. 1 v. Holt, 226 Mo. 406. (6) The finding and decree of the trial court, with reference to the interplea of appellant herein should be reversed with directions to enter a decree in favor of appellant. Section 1514, R. S. 1919; Rice v. Shipley, 159 Mo. 399; State ex rel. v. Walbridge, 153 Mo. 195.

Fred Wislizenus for respondent Ottilie Cummins.

(1) Appellant had no lien on the interest of respondent on the fund in court. (a) The fund came to respondent from a fraternal benevolent society and as such could not be subjected to a lien. Revised Statutes 1919, sec. 6419. (b) In Missouri attorneys have no common-law lien on the litigation or its proceeds. Frissell v. Haile, 18 Mo. 18; Alexander v. Railroad, 54 Mo.App. 73; Kersey v. O'Day, 173 Mo. 560. (c) The statutory lien of an attorney does not attach before litigation is initiated, and appellant in this case had not acted for respondent in any court proceeding. Revised Statutes 1919, sec. 690. (2) Appellant's contention that he is entitled to a personal judgment against respondent was never made in the court below and is presented for the first time by his brief in this court. This court will not consider the question. Revised Statutes 1919, sec. 1512. (3) (a) When in the interpleader suit it is determined that one claimant has no right to the fund the court has no jurisdiction to render a personal judgment in his favor against another claimant to the fund. Much less can the court subject the interest of one claimant to the claims of another who is adjudicated to have no lien on the funds in the interpleader suit. Dyas v. Dyas, 231 Ill. 367. (b) When a claimant sues in equity to enforce an equitable right he cannot take a judgment at law in that case when it is decided that he has no equity. 16 Cyc. 111, Art. "Equity"; Loeb v. Supreme Lodge, 198 N.Y. 180; Mansfield v. Bank, 74 Mo.App. 200; Miller v. Railroad, 162 Mo. 424.

SUTTON, C. Allen, P. J., and Becker and Daues, JJ., concur.

OPINION

SUTTON, C.

Plaintiff brought this action to require the defendants to interplead for the proceeds of a life insurance policy. The policy was issued by plaintiff to William M. Cummins in the sum of three thousand dollars, payable at the death of said Cummins, to his wife, Ottilie Cummins, as beneficiary. Plaintiff's petition was founded upon adverse and conflicting claims made by the defendants for the amount due under the policy. Defendant Anderson answered, claiming a lien on the policy to the amount of seven hundred dollars for services rendered defendant Ottilie Cummins as her attorney. Defendant Ottilie Cummins answered, alleging that she was the beneficiary named in the policy at the time of the death of the insured and as such entitled to the proceeds of the policy, and denying that any of the other defendants had any right, title, or interest therein. Each of the other defendants filed an answer, claiming all or a part of the proceeds of the policy. The plaintiff paid into court the sum of three thousand dollars, the amount due under the policy, and was thereupon by the court discharged.

The cause was then tried before the court on the issues joined between the defendants by their pleadings aforesaid. The court gave judgment in favor of the defendant Ottilie Cummins and against all of the other defendants, and ordered the said fund of three thousand dollars to be paid to the said Ottilie Cummins. From this judgment the defendant C. J. Anderson appeals.

Appellant C. J. Anderson testified that the policy in question came to his possession as attorney for the respondent Ottilie Cummins; that he rendered services for her in an effort to procure an adjustment and settlement of the amount due under the policy; that the services so rendered were of the reasonable value of $ 650; that he also rendered services for her in adjusting a damage claim against the United Railways Company for the death of her husband; that the services so rendered were of the value of $ 100; that he had been paid on account of said services $ 50; that the balance of $ 700 remained unpaid; that he prepared proofs of loss as required by the policy and also prepared a petition with a view to filing suit for the amount due under the policy; that before the suit was filed respondent discharged him as her attorney and demanded that he deliver to her the policy; that he refused to deliver the policy to her, and retained it in his possession at the time of the trial.

Appellant insists that he has a lien on the policy and on the fund deposited in court as the proceeds of the policy for the amount due him for his services rendered respondent as her attorney. He concedes, as he must, that no lien exists in his favor under the statute. [Sections 690 and 691, Revised Statutes 1919.] He insists, however, that he is entitled to a lien at common law. Two classes of attorneys' liens obtained at common law, viz., (1) a special or charging lien on the judgment procured by the attorney in favor of his client, for his services rendered in procuring it, and (2) a general, possessory, or retaining lien, attaching to papers, books, documents, securities, and money, coming to the attorney in the course of his professional employment. That the appellant has no special or charging lien is beyond controversy. [Frissell v Haile, 18 Mo. 18, l. c. 20; Alexander v. Grand Avenue Ry. Co., 54 Mo.App. 66, l. c. 73; Kersey v. O'Day, 173 Mo. 560, l. c. 568, 73 S.W. 481; Roberts v. Nelson, 22 Mo.App. 28, l. c. 31; Wait v. Atchison, Topeka & Santa Fe Ry. Co., 204 Mo. 491, l. c. 501, 103 S.W. 60; 6 Corpus Juris 766; 1 Jones on Liens, Sec. 153; 2 Ruling Case Law 1069.] But appellant contends that he has a retaining lien on the policy for the reasonable value of his services, and that the court should therefore enforce such lien by ordering the amount of his reasonable charges paid to him out of the proceeds of the policy deposited in court. Assuming, without deciding, that appellant has a retaining lien on the policy for his services, still it avails him nothing in this action, for such lien is passive in its nature and may not be actively enforced. Such lien...