Nelson v. Massman Const. Co.
| Citation | 120 S.W.2d 77 |
| Decision Date | 23 May 1938 |
| Docket Number | 19119,19120,19121 |
| Parties | THOMAS NELSON, Plaintiff, v. MASSMAN CONSTRUCTION COMPANY, et al |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.
In this cause we are called upon to review the action of division No. 8 of the circuit court of Jackson county Missouri, in setting aside satisfaction of a judgment in favor of plaintiff and against defendants, and awarding judgment for attorney fees, in a cause numbered 367886 in said circuit court, wherein Thomas Nelson appears as plaintiff and Massman Construction Company, a corporation and Henry J. Massman, appear as defendants.
The statement of the case, as shown in appellant's brief, contains 16 printed pages and is not strictly in accordance with the provisions of section 1060, R.S. Mo. 1929, and with rule 16 of this court, in that is mingles argument, presentation of issues of law and unnecessary repetition of evidence in narrative form wherein writer but states his conclusions as to what witness testified to, and wherein it can be surmised that conclusions of evidence are stated in the most favorable aspect to the losing party.
The respondents have filed motion to dismiss appeal for reasons stated above. Further, respondents also ask dismissal of appeal on alleged ground that assignments of error in appellant's brief do not distinctly allege error upon which reversal is sought and, therefore, in violation of rule 17 of this court. An examination of assignments made in the brief disclose that same are faulty in failing to assign reasons. However, the 10th assignment of error is as to refusal of peremptory instructions asked by appellant, and we note that the other specifications of error more or less come into the consideration of said assignment No. 10.
As going to the motion to dismiss appeal, we will say that the situation presents perplexities in that there is herein involved three affidavits for appeal; one directed to the judgment in favor of M. T. Henderson; one directed to the judgment in favor of Thomas E. Deacy; and a third directed as to both movents, M. J. Henderson and Thomas E. Deacy. Further, the abstracts of record are identical as to contents, and by agreement the three appeals are consolidated. Further, there was but one oral argument as to the three, and it is agreed that one opinion will suffice in the review of the causes. Under the conditions presented it is difficult to strictly follow the rule as to statement of the case. We, therefore, conclude that the motion to dismiss the appeal should not be sustained and, from the briefs filed and the record before us, we will undertake to formulate a statement that will embrace the issues.
The case of Thomas Nelson v. Massman Construction Co. et al, an action for damages, was tried in division No. 8 of the circuit court of Jackson county, Missouri, and resulted in judgment for the plaintiff therein in the sum of $ 5,500.00. The plaintiff's petition in said suit was signed by Jacobs & Henderson, a law firm then composed of Floyd Jacobs and M. J. Henderson. At said time, Thomas E. Deacy, although not a member of the firm, had arrangements with said law firm whereby he, according to his testimony, was to receive 25 percent of the fee. It appears that Mr. Deacy took an active part in the trial had in the circuit court and in first presentation on appeal.
An appeal was taken from the judgment in the trial court to this court. Mr. Deacy presented the case by oral argument on appeal. In a decision by this court, the judgment of the lower court was reversed and the cause remanded. Thereafter a motion for rehearing was filed and a rehearing granted. Thereafter Mr. Jacobs presented the case upon appeal, and the judgment of the trial court was affirmed at the October term, 1935, of this court. The mandate of this court was filed in the trial court in November 1936.
It is shown that on April 1, 1935, the law firm of Jacobs & Henderson was dissolved. The firm was dissolved shortly before Mr. Deacy argued the case in this court.
It appears that the agreement between Nelson and the firm of Henderson & Jacobs was that said law firm should receive for its services 50 percent of the net amount recovered.
There is evidence to the effect that after the opinion in this court, reversing and remanding, was handed down, Thomas Nelson, plaintiff in said case, went to the office of Henderson and Deacy and, according to evidence of Mr. Deacy, informed them that he preferred to turn his case over to Mr. Jacobs for further procedure. It appears that thereafter Mr. Jacobs handled the ease; Henderson and Deacy not further appearing.
It appears, as aforesaid, that Mr. Jacobs handled the case on rehearing in this court, and also in certiorari to the Supreme Court of Missouri, and to the Supreme Court of the United States. Certiorari being denied, the mandate of this court was filed in trial court on or about November 2, 1936. Thereafter, and before the judgment was paid into court, the attorney for Mr. Nelson was notified that Henderson and Deacy had a fee in the judgment, and there is evidence to the effect that said attorney said that Mr. Henderson and Mr. Deacy would be protected when the judgment was paid.
On November 2, 1936, it is shown that a letter was sent to the circuit clerk of Jackson county, Missouri, which is in words and figures as follows:
In the trial on the motions there was produced and offered copies of letters; the original of which it is agreed was signed, mailed and received. These copies were marked exhibits No. 4 and No. 5.
Exhibit No. 4 reads as follows:
Exhibit No. 5 is as follows:
Bearing upon the question of notice as to the Henderson and Deacy claims, the following appears in the testimony of John Strode, deputy circuit clerk.
It is shown that the amount of the judgment was...
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