Noell v. Missouri Pac. R. Co.

• Citation: 74 S.W.2d 7,335 Mo. 687
• Decision Date: 17 July 1934
• Docket Number: 32111
• Parties: Charles P. Noell v. Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

74 S.W.2d 7

335 Mo. 687

Charles P. Noell v. Missouri Pacific Railroad Company, a Corporation, Appellant

No. 32111

Supreme Court of Missouri

July 17, 1934

Motion for Rehearing Overruled July 17, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Reversed.

Edward J. White, Thomas J. Cole and Jones, Hocker Sullivan, Gladney & Reeder for appellant.

(1) A lawyer, working on a contingent fee, who is discharged, may only recover of his client quantum meruit, plus damages for breach of his contract; and the lien, if any covers only the former, and not the latter. 2 R. C. L. p 1048, sec. 131; Clayton v. Martin, 151 S.E. 856; Jordan v. Davis, 172 Mo. 609; Dempsey v. Dorrance, 151 Mo.App. 431; Henry v. Vance, 63 S.W. 273; Gibson v. Ry. Co., 122 Iowa 565, 98 N.W. 475; R. S. 1929, sec. 11716. (2) The plaintiff cannot enforce a lien quantum meruit, since his petition proceeds on an express contract. Gillham v. Met. St. Ry. Co., 282 Mo. 118. (3) At common law there is no such attorney's lien as is here asserted. Frissell v. Hale, 18 Mo. 21; Gubick v. Huntley, 144 Mo. 252; Roberts v. Nelson, 22 Mo.App. 31; Young v. Renshaw, 102 Mo.App. 184. (4) The causes of action arose in Arkansas, and the contracts of employment were made there, and if lien there be, it must needs have arisen under the laws of that state. 6 C. J. 801; Citizens' Natl. Bank v. Culver, 54 N.H. 327, 20 Am. St. Rep. 134. (5) The law of Arkansas was not pleaded, and hence cannot form the basis of recovery here. R. S. 1929, sec. 806; Ramey v. Ry. Co., 323 Mo. 662; Gorman v. Terminal Ry. Co., 28 S.W.2d 1023; Menard v. Goltra, 40 S.W.2d 1053. (6) To extend a lien created by a statute of Missouri to a cause of action arising in Arkansas is a denial of due process of law, contrary to both State and Federal Constitutions. Stanley v. Ry. Co., 100 Mo. 438; Bonaparte v. Tax Court, 104 U.S. 594; Davis v. Whitt, 277 S.W. 311; 37 C. J. 309. (7) But for express statutory provisions, these causes of action could not have been enforced here at all. R. S. 1929, sec. 706; Wells v. Davis, 303 Mo. 401; Rositzky v. Rositzky, 329 Mo. 669. (8) The General Assembly could not and has not attempted to fix liens upon foreign causes of action. R. S. 1929, sec. 11716; Taylor v. Transit Co., 198 Mo. 725. (9) The proceedings in the Arkansas circuit and chancery courts are entitled to full faith and credit here. U.S. Const., Art. IV, Sec. 1. (10) The causes of action upon which the plaintiff asserts a lien were merged into the judgments had thereon. Wycoff v. Hotel Co., 146 Mo.App. 560; McKnight v. Taylor, 162 Mo. 544; 15 R. C. L. 782, sec. 236. (11) These judgments were property, subject to the jurisdiction of the Arkansas courts. McAlister v. Pritchard, 287 Mo. 498; Louisiana v. Mayor of New Orleans, 109 U.S. 29; Tourville v. Wabash Ry. Co., 148 Mo. 623; Meierhoffer v. Kennedy, 304 Mo. 269; Eisenstadt Mfg. Co. v. Smelting Co., 219 Mo.App. 630. (12) The Arkansas chancery court was possessed of full jurisdiction to determine the right of the plaintiff in and his lien upon the recovery represented by these judgments on constructive service. 34 Restatement Conflict of Laws, quoted Univ. of Mo. Bulletin, No. 22, p. 69; Kwilecki v. Holman, 258 Mo. 624; Pennoyer v. Neff, 95 U.S. 722; State ex rel. v. Fidelity Co., 317 Mo. 1090; Perry v. Young, 182 S.W. 578; Goodman v. Niblack, 102 U.S. 563.

Allen, Moser & Marsalek for respondent.

(1) Appellant's brief is not such as to bring anything before this court for review. Appellant's assignments of error are mere general assignments, categorically charging that the trial court erred in refusing to give certain declarations of law. And appellant's points and authorities are mere abstract statements of purported propositions of law, none of which is shown to have any direct bearing upon or connection with any error so assigned. Under the rulings of this court the brief does not comply with Rule 15 of this court so as to warrant a review of any such alleged errors. Aulgur v Strodtman, 329 Mo. 742; Summers v. Cordell, 187 S.W. 7; Hunt v. Hunt. 307 Mo. 389; Cox v. Orr, 322 Mo. 209; Stroker v. St. Joseph, 316 Mo. 1090; State ex rel. Davidson v. Caldwell, 310 Mo. 405; Automatic Sprinkler Co. v. Stephens, 306 Mo. 525; Vahldeck v. Vahldeck, 264 Mo. 533. (2) Since these cases were tried below before the court without a jury, a jury being waived, with no declarations of law requested by either side other than those of a peremptory character requested by defendant, the judgments herein should be affirmed if there is any substantial evidence tending to support a recovery within the scope of the pleadings. Briggs v. Joint Stock Land Bank, 328 Mo. 25; American Metal Co. v. Daugherty, 204 Mo. 71; Noell v. Ry. Co., 21 S.W.2d 941. (3) Since plaintiff had valid contracts of employment with the administratrices to prosecute in this jurisdiction actions for the death of Hobbs and Ward, giving him a forty per cent interest in such causes of action and the proceeds thereof, and did institute such actions against the defendant in this State, and there is abundant substantial evidence going to show that, while such actions were pending here, the defendant settled said death claims in Arkansas by agreeing to pay each administratrix the sum of $ 17,500, and that the perfunctory jury trial of the two causes together in Arkansas was not an actual contest, but merely the means taken for consummating such settlement, defendant became liable to plaintiff for forty per cent of the amount of such settlement, under the Attorneys' Lien Statute of this State. Secs. 11716, 11717, R. S. 1929; Noell v. Ry. Co., 21 S.W.2d 937; O'Connor v. Transit Co., 198 Mo. 645; Taylor v. Transit Co., 198 Mo. 730; Whitecotton v. Railroad Co., 250 Mo. 624; Yonge v. Transit Co., 109 Mo.App. 248; United Rys. Co. v. O'Connor, 153 Mo.App. 128; Young v. Renshaw, 102 Mo.App. 173; Wait v. Railroad, 204 Mo. 501; Elliott v. Ry. Co., 208 Mo.App. 365; Bishop v. United Rys. Co., 165 Mo.App. 226; Byram v. Miner, 47 F.2d 112. (a) Where an attorney's client and the adverse party surreptitiously enter into an arrangement for the settlement of the cause of action upon which the attorney has a lien, the means or method used to carry out such arrangement is immaterial. Any means or method producing the result constitutes a settlement or compromise within the meaning and intendment of the Attorney's Lien Statute. Western States Oil & Land Co. v. Helms, 143 Okla. 206, 72 A. L. R. 367. (b) Upon making such settlement, the defendant was required to retain, and is conclusively presumed to have retained, in its possession enough of the settlement funds to discharge plaintiff's attorney's lien. Sutton v. Chicago Rys. Co., 258 Ill. 551; McKennell v. Payne, 189 N.Y.S. 7, 197 A.D. 340; Byram v. Miner, 47 F.2d 112. (c) The fact that as between the administratrices and this defendant the administratrices' causes of action were merged in the judgments rendered in their favor against defendant in Arkansas does not at all affect plaintiff's right to recover his fees directly from the defendant in a separate personal action for the enforcement of his lien. Plaintiff was not required to look to or follow the proceeds of those settlements; he was not restricted, by our Attorney's Lien Statute, to that particular remedy to enforce his lien. Byram v. Miner, 47 F.2d 112; United Rys. Co. v. O'Connor, 153 Mo.App. 128; Shempp v. Davis & Nicholson, 201 Mo.App. 435; Curtis v. Met. St. Ry. Co., 118 Mo.App. 351; Bishop v. Rys. Co., 165 Mo.App. 226; Yonge v. Transit Co., 109 Mo.App. 235; Noell v. Ry. Co., 21 S.W.2d 937. (4) A client cannot, by discharging his attorney, deprive him of his lien, unless such discharge is in good faith and for good cause. United Rys. Co. v. O'Connor, 153 Mo.App. 141; Gillham v. Ry. Co., 282 Mo. 131; Gibson v. Railroad Co., 122 Iowa 565; Johnson v. Ravitch, 113 A.D. 810, 99 N.Y.S. 1059; Gordon v. Hennings, 89 Neb. 252; In re Board of Water Supply, 179 A.D. 877, 167 N.Y.S. 531; 6 C. J. 775, sec. 378. (5) Service of a copy of a complaint and summons upon a nonresident of Arkansas, beyond the territorial limits of that state, pursuant to Sections 1157 and 1158 of the Arkansas statutes pleaded, will not support a judgment other than one purely in rem affecting the property of the nonresident defendant within the jurisdiction of the Arkansas court. Scharmann v. Ry. Co., 144 Minn. 290, 175 N.W. 554; Pennoyer v. Neff, 95 U.S. 714; Palmer v. Bank, 281 Mo. 87. (a) In so far as such sections undertake to authorize any judgment in personam, on such constructive service outside of the State of Arkansas, they clearly violate the due process clause of the Fourteenth Amendment to the Constitution of the United States, as well as Section 30 of Article II of the Constitution of Missouri. Scharmann v. Ry. Co., 144 Minn. 290, 175 N.W. 554; Pennoyer v. Neff, supra; Palmer v. Bank, supra. (b) The proceeding attempted to be had in said Arkansas chancery court, wherein it was sought to summarily deprive plaintiff of his right to a lien under our statute, was an attempted bill of interpleader. Such was the character of the cross-complaint of this defendant in that proceeding. A bill of interpleader is not a proceeding in rem, but one in personam; and personal service of process within the jurisdiction cannot be dispensed with. 33 C. J., p. 420, sec. 2, p. 450, sec. 32; Brighton v. Washtenaw, 217 Mich. 650, 187 N.W. 363; Mead v. Mead, 205 Ill.App. 327; Gray v. Masonic Aid Assn., 50 N.W. 27; Lowery v. Downing Mfg. Co., 73 Fla. 535; Bullowa v. Provident Life, etc., Co., 125 A.D. 545, 109 N.Y.S. 1058; Washington L. Ins. Co. v. Godding, 19 Tex. Civ. App. 490, 49 S.W. 123. (c) The Arkansas chancery court obviously had no jurisdiction to require pla...