Nicola v. American Car & Foundry Company Hans Wulff

• Decision Date: 03 November 1914
• Citation: Nicola v. American Car & Foundry Company Hans Wulff, 170 S.W. 366, 185 Mo.App. 285 (Mo. App. 1914)
• Parties: ATHANASI NICOLA v. AMERICAN CAR & FOUNDRY COMPANY HANS WULFF, Surviving Partner, Claimant, Respondent; AMERICAN CAR & FOUNDRY COMPANY, Appellant
• Court: Missouri Court of Appeals

170 S.W. 366

185 Mo.App. 285

ATHANASI NICOLA v. AMERICAN CAR & FOUNDRY COMPANY HANS WULFF, Surviving Partner, Claimant, Respondent; AMERICAN CAR & FOUNDRY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 3, 1914

Appeal from St. Louis City Circuit Court.--Hon. Wilson A. Taylor Judge.

AFFIRMED.

Judgment affirmed.

Watts Gentry & Lee for appellant.

On the agreed statement of facts the administrator of the partnership estate of Stein & Wulff is not entitled to recover on his motion. No settlement was made with the plaintiff within the meaning of sections 964 and 965, Revised Statutes of Missouri, 1909, giving a lien to attorneys in certain cases, and no money was paid by defendant to the plaintiff. A judgment was rendered and execution having been issued, there was no course open to the defendant but to pay the money to the sheriff. The money was thus placed in custodia legis, and the defendant, by paying the sheriff, was entirely relieved of the judgment, including Hans Wulff's interest therein. Lawson v. Tel. Co., 164 S.W. 138. Payment to a sheriff who holds an execution, satisfies the judgment, and creditors must then look to the sheriff. Blair v. Caldwell, 3 Mo. 353; Trigg v. Harris et al., 49 Mo. 176.

Brownrigg & Mason for respondent.

Where an interest in a judgment has been assigned and the judgment defendant, with notice of this assignment, pays an execution issued for the entire amount of the judgment in favor of the execution plaintiff, and the sheriff endorses satisfaction on the execution by reason of such payment, such satisfaction may be set aside on motion in the original case. Laughlin v. Fairbanks, 8 Mo. 367; Wait v. Railroad, 204 Mo. 503.

NORTONI J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

This is an appeal from an order of the court setting aside the satisfaction of an execution and judgment and ordering a new writ of like character to issue against defendant in favor of plaintiff Wulff, who is administrator, as surviving partner of the firm of Stein & Wulff, attorneys at law.

One Nicola was injured while in the employ of the American Car & Foundry Company and employed the law firm of Stein & Wulff to prosecute his cause of action against defendant on account of such personal injury. Nicola contracted in writing with his attorneys, Stein & Wulff, to the effect that they should be compensated in the amount of thirty per cent of the recovery in such case, and notice of such employment and contract was duly served on defendant under the Attorneys' Lien Act (sections 964, 965, R. S. 1909). Stein & Wulff instituted suit upon plaintiff's cause of action against defendant, but, subsequently, through no fault on their part, Nicola dismissed them as counsel and employed other attorneys to further prosecute the case.

The original suit instituted by Stein & Wulff was dismissed and a new one instituted on the same cause of action by the attorneys so subsequently employed by Nicola. After vicissitudes and changes from court to court, the cause of action, which was charged with the lien in the first instance in favor of Stein & Wulff was merged in a judgment of the circuit court of the city of St. Louis through the efforts of the attorneys so subsequently employed. In the meantime, Stein departed this life and Wulff was duly appointed by the probate court administrator of the partnership estate of Stein & Wulff. Wulff notified the attorneys for defendant that he intended to insist upon the attorneys' lien to compensate the claim of the firm of Stein & Wulff of which he was administrator and surviving partner. It appears that judgment was finally rendered in favor of Nicola against defendant American Car & Foundry Company on the original cause of action, by agreement between Nicola's new attorneys and defendant, in the amount of $ 2250 and that an execution also was issued on the same day against defendant for such amount and cost of suit and placed in the hands of the sheriff. Defendant paid the amount of the judgment and cost to the sheriff promptly and the sheriff indorsed the execution satisfied, and the sheriff's execution docket was likewise indorsed satisfied by plaintiff Nicola and returned.

It is conceded that the sheriff had no knowledge of the claim of Stein & Wulff in the premises and it is conceded, too, that defendant was fully advised with respect of the same. Indeed, touching this matter, it appears that, besides the original notice to defendant, Wulff verbally notified its attorney that he still claimed the attorneys' lien to compensate the claim of thirty per cent of the recovery under contract with Nicola, and requested such attorney to notify him of any settlement of the case or of any money to be paid in satisfaction thereof, in order that he might protect such claim, and defendant, through its attorneys, declined to make such promise and refused to notify Wulff concerning the matter. After Wulff ascertained the fact that a judgment of $ 2250 had been given by agreement in favor of plaintiff against defendant and execution issued thereon and the amount paid and execution and judgment indorsed satisfied, on the same day he filed his motion in the circuit court to set aside such satisfaction of the execution and judgment and prayed the court to order the issue of an execution in his favor for the amount of the claim of Stein & Wulff--that is, $ 709.18. This motion the court sustained and ordered the satisfaction of the judgment and execution to be canceled and a new execution in favor of the claimant Wulff to satisfy the attorneys' lien of Stein & Wulff.

Generally speaking such a course of procedure--that is, by motion--is a proper one as has been heretofore determined. [See Wait v. Atchison, T. & S. F. R. Co., 204 Mo. 491, 503, 103 S.W. 60; Young v. Renshaw, 102 Mo.App. 173, 76 S.W 701. See, also, Curtis v. Metropolitan St. R. Co., 118 Mo.App. 341, 94 S.W. 762.] But it is argued that the court erred in sustaining the motion of Wulff and issuing a new execution in his favor to satisfy the attorneys' lien of Stein & Wulff, for the reason that the payment of the amount of the judgment on execution to the sheriff must be regarded in every case as a satisfaction of judgment on the part of the defendant and the lien claimant must then look to the sheriff to compensate his claim. When no third persons are...