Morse v. Eighth Judicial Dist. Court in and for Clark County, 3540.

Docket Nº3540.
Citation195 P.2d 199, 65 Nev. 275
Case DateJune 23, 1948
CourtSupreme Court of Nevada

195 P.2d 199

65 Nev. 275

MORSE et al.

No. 3540.

Supreme Court of Nevada

June 23, 1948

Petition by Harold M. Morse and Madison B. Graves, doing business under the firm name and style of Morse & Graves, against the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, Honorable A. S. Henderson, Presiding Judge thereof, for relief from an order requiring petitioners to deliver to a substituted attorney sundry papers which came into petitioners' possession as attorneys for plaintiffs in pending litigation.

Decision in accordance with opinion. [195 P.2d 200]

[65 Nev. 277] George E. Marshall, of Las Vegas, for petitioners.

Emilie N. Wanderer, of Las Vegas, for respondents.

BADT, Justice.

The above named petitioners filed in this court their petition for a writ of certiorari against the respondent court and the judge thereof, seeking relief from an order made by that court and alleged to be without or in excess of its jurisdiction ordering them to deliver to a substituted attorney sundry papers that had come into their possession as attorneys for the plaintiffs in certain pending litigation. We issued the writ and made it returnable June 1, 1948, on which date the respondents presented a general demurrer and motion to quash the writ and to dismiss the proceedings, and the matter was argued and submitted on that date upon the demurrer and motions. Both parties also submitted supporting affidavits. The facts are as follows:

On July 11, 1947, Fred Delkin, Hattie May Pavlo and James Delkin entered into a written contract with Morse & Graves, attorneys at law, whereunder the latter were employed to prosecute certain claims against Alonzo C. [65 Nev. 278] Delkin, Eugenia Delkin, his wife, and others for a contingent fee of 25% 'of any money or property paid, received, collected or recovered, by action, compromise or otherwise, upon or in satisfaction or in settlement of said claims or any judgment or judgments obtained thereon.' The attorneys agreed to commence the action not later than September 1, 1947, and diligently to prosecute the same. Paragraph IV of the contract reads as follows: 'Clients reserve the right to discharge the attorneys from their employment at any time. In the event of such discharge, clients will compensate the attorneys for services rendered and expenses incurred to the date of discharge in a reasonable sum to be determined, if possible, by agreement between the parties hereto.' Petitioners, the attorneys comprising the firm of attorneys as parties to said contract, filed such complaint December 1, 1947, on behalf of the said clients and against the said defendants, seeking general equitable relief for breach of a trust relationship which was alleged to have amounted to a partnership between the parties, for a dissolution and accounting, for restitution of specific properties and for exemplary damages and costs. The prayer of the complaint demanded restitution to the plaintiffs of properties amounting to in excess of $1,240,000 and for $100,000 exemplary damages. The complaint was verified by one of the plaintiffs. One of the defendants was immediately served, and on January 15, 1948, all of the defendants appeared by demurrer and motion to strike, which demurrer and motion are still pending. [195 P.2d 201]

On April 12, 1948, the plaintiffs in such action filed in the respondent court their notice of motion to substitute Emilie N. Wanderer as their attorney in the place and stead of Morse & Graves, which motion was noticed for April 16, 1948. The motion was supported by the affidavit of Hattie May Delkin Pavlo, alleging in some detail breach of the contract of employment by the attorneys and alleging negligence and misconduct, and will be referred to in greater detail later. [65 Nev. 279] The motion sought an order 'releasing the litigation herein of any claim of attorneys lien which said attorneys may make and for an order directing that said attorneys turn over to the plaintiffs herein all files, papers, claims, and records now in their possession, in connection therewith and pertinent thereto.' Morse & Graves moved to strike certain portions of the affidavit. The motions were heard in the respondent court on April 28, 1948, at which time the attorneys stated to the court that there was no objection to the substitution of attorneys. The court thereupon entered a minute order that Emilie N. Wanderer be substituted as attorney for plaintiffs in place of Morse & Graves 'and such papers that pertain to this suit, but no private correspondence between the plaintiffs and attorneys Morse & Graves, shall be delivered to Emilie N. Wanderer within five days from date hereof.' The movents did not ask in their notice of motion and the court did not order that the compensation of the attorneys for their services to the date of the substitution be determined or paid or otherwise secured and no evidence was adduced on such issue. The affidavits in the present proceeding show that the clients asked leave to submit evidence on such issue and to have the compensation determined, but that the respondents, on objection of the attorneys, refused to hear or determine such issue. The attorneys thereafter served notice of motion for a rehearing of the court's orders and although respondents maintain that such motion for rehearing is still pending and that the attorneys have thus not exhausted their remedies in the respondent court, we are satisfied from the record now before us that the respondent court in effect denied the motion for rehearing.

At the time of the hearing of the original motion the attorneys served the clients with copy of summons and complaint in an action commenced by the attorneys against the clients for services in the sum of $10,000. Such action is still pending. Following the minute order [65 Nev. 280] of April 28, 1948, above referred to, the respondent judge signed and filed a written order of substitution and directing the displaced attorneys to deliver to the sbstituted attorney 'all files, papers, correspondence and records now in their possession in connection herewith and pertinent hereto, within five days from the date hereof.' It will be noted that the terms of the written order are broader than the terms of the minute order and do not except the correspondence between the clients and the attorneys.

It may be noted in passing that petitioners assert that for such reason the court was without jurisdiction to make the order, but assign no reason and submit no authorities in support of their contention that the greater breadth of the written order over the minute order constituted an excess of jurisdiction. This court has several times had occasion to consider discrepancies between a minute order and a formal written order made by the court (see Mortimer Building and Loan Commissioner v. Pacific States Savings and Loan Company, 62 Nev. 142, 153, 141 P.2d 552, 145 P.2d 733; Silva v. Second Judicial District Court, 57 Nev. 468, 66 P.2d 422), but while error was assigned it was not claimed that the written order was for that reason beyond the jurisdiction of the court. In any event the nature of the papers involved in the present controversy somewhat narrows the inquiry so far as this point is concerned. Counsel for the respondents, who was likewise the substituted attorney in the respondent court, states that the clients have no desire to be furnished with the private correspondence between them and the displaced attorneys. We may conclude from statements made in the oral arguments and the written memoranda filed by the parties that the papers in question comprise sundry memoranda, papers and data furnished by [195 P.2d 202] the clients to the attorney. These papers are considered essential by the substituted attorney for the prosecution of the main action.

As above noted the petitioners do not object to [65 Nev. 281] the order substituting attorneys. They maintain however that the court was without jurisdiction to discharge and destroy their attorney's lien upon the papers in their possession. That the lien would be destroyed by delivery of the papers in compliance with the order cannot be questioned. (As the main controversy is between 'the clients' and 'the attorneys' and as the authorities we shall discuss refer to the parties in that manner, we shall in many cases refer to the plaintiffs in the main litigation as 'the clients' and to the petitioners herein as 'the attorneys.')

The very obvious confusion into which the parties fall as evidenced by the oral arguments and the written memoranda filed with the court (nothing in the nature of a formal brief was filed by either party) results from their failure to distinguish clearly between a general or retaining lien and a special or charging lien. As an example of this confusion both parties rely upon the case of Berrum v. Georgetta, 60 Nev. 1, 93 P.2d 525, 98 P.2d 479. The attorneys rely upon this case as laying down the procedure they followed in commencing their action to recover $10,000 attorney fees from the clients and to foreclose their attorney's lien in satisfaction of their claim. The respondents rely on the case to show 'that an independent action lies for the enforcement of the aforesaid lien.' But the 'aforesaid lien' quoted by the respondents immediately preceding this assertion is the lien provided by § 8923, N.C.L., giving the attorney a lien upon his client's cause of action which attaches to the judgment etc. and the proceeds thereof. This is a special or charging lien and was the kind of lien with which Mr. Justice Ducker was dealing in Berrum v. Georgetta, supra. It is entirely separate, distinct and remote from a retaining lien. The lien affected by the lower court's order in the present case is distinctly a retaining lien. This attaches to all papers, books, documents,...

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