Pike v. Thomas

• Decision Date: 09 July 1898
• Citation: 47 S.W. 110,65 Ark. 437
• Parties: PIKE v. THOMAS
• Court: Arkansas Supreme Court

47 S.W. 110

65 Ark. 437

PIKE v. THOMAS

Supreme Court of Arkansas

July 9, 1898

Appeal from Clark Circuit Court in Chancery RUFUS D. HEARN, Judge.

Cause remanded.

Dodge & Johnson and J. H. Crawford, for appelant.

An attorney has a lien upon the amount he recovers, to the extent of the fee for which he has contracted. 15 How. 415 91 U.S. 253; 130 U.S. 395; 36 Ark. 604; 42 Ark. 402; 33 Ark 234, 235; 38 Ark. 385. A plea to the jurisdiction of the court of equity can not be raised, for the first time, upon appeal. 15 How. 415; 1 Dan. Ch. Pr. 555; 143 U.S. 93; 150 U.S. 515; Sand. & H. Dig., §§ 5615, 5617, 5618; 37 Ark. 185; 26 Ark. 54; 52 Ark. 411; 32 Ark. 562; 31 Ark. 411. It was the duty and the right of the administrator to employ an attorney; and since he had no funds in his hands with which to pay such attorney, he had a right to make the fee a charge upon the amount of the recovery. 73 N.Y. 131! 6 N.Y 567; 63 N.Y. 645; 8 Hun, 4; 38 Ark. 139; 4 Pa.St. 150; 6 Fla 257; 110 U.S. 42; 50 F. 666; 35 Ark. 247; 61 Ark. 410. A constructive trust exists in favor of the attorney. 2 Story, Eq. Jur. § 964; 1 Perry, Trusts, §§ 13, 166, 235; 1 Lewin, Trusts, § 13, 1 Pomeroy, Eq. Jur. § 155; Bishp. Eq. 118; 2 Pomeroy, Eq. Jur. § 627; 42 Ark. 195; 1 Perry, Trusts, 195.

John E. Bradley, for appellee.

The claim was a chose in action in the hands of the administrator, and, as such, part of the estate. Sand. & H. Dig. § 57; 4 Ark. 173. The amount of the fee is governed by Sand. & H. Dig., § 217. The claim against the estate was disallowed in an action at law (62 Ark. 223), and is now res judicata. 1 Am. & Eng. Enc. Law, 825.

OPINION

BATTLE, J.

Yvon Pike, as administrator of the estate of L. H. Pike, deceased, brought an action against S. L. Thomas, in his individual capacity, and as administrator of the estate of Louis Thomas, deceased. He alleged in his complaint that his intestate, Luther H. Pike, in his lifetime, entered into the following contract with C. L. Thomas, as administrator of Louis Thomas, deceased:

"Whereas, I, Charles L. Thomas, as administrator of the estate, respectively, of Louis Thomas, deceased, and H. H. Carter, deceased, of Arkadelphia, in the county of Clark, in the state of Arkansas, have employed Luther H. Pike, attorney and counselor, of Washington, D. C., to take charge of and prosecute to its final determination, in such lawful manner as he may deem best for my interest, the certain claims against the United States for $ 2,625 and $ 866.50, respectively, that were presented to the commissioners of claims, under the act of congress of March 3, 1871,--the one on behalf of the estate of said Louis Thomas, the other by said H. H. Carter,--and were disallowed by it; said attorney to defray the further prosecution of said claims out of his own proper means, without reclamation therefor. Now, therefore, I do hereby agree, in consideration thereof, to pay to him a sum of money equal to 50 per centum of the amounts that may be recovered on said claims, the payment of which is hereby made a lien upon the said claims, and upon any drafts, money or evidence of indebtedness which may be paid or issued thereon. In witness whereof, I have hereunto set my hand and seal this 28th day of July, A. D. 1886.

"(Seal.) CHARLES L. THOMAS.

"Witnesses:

"J. P. HART,

"A. M. CROW."

He further alleged that his intestate had performed his part of the contract, and recovered on the claim of C. L. Thomas, as administrator of Louis Thomas, deceased, the sum of $ 1,338; that this sum was paid to defendant on the second day of December, 1892, by the United States, without passing through the hands of Luther H. Pike, deceased, or his administrator; and that the same still remained in the hands of the defendant, as administrator; and that he had a lien on the same for the services rendered by his intestate; and asked for the enforcement of the same.

The defendant, C. L. Thomas, as administrator of Louis Thomas, deceased, answered, and admitted the execution of the contract, the performance by Luther H. Pike, in his lifetime, of his part, the recovery of the $ 1,338, the receipt of the same by himself, and that the same was still in his possession, none of it having been paid out. He admitted that the estate of Thomas was still unadministered; and alleged as a defense that the contract was illegal, and was not binding upon him as administrator.

The deaths of Louis Thomas and Luther H. Pike are admitted; and the fiduciary capacity of Yvon Pike and C. L. Thomas is not disputed. It was admitted that, at the time the contract sued on was entered into, or since, no assets of any kind whatever, except the funds in controversy, belonged to the estate of Thomas; "that congress appropriated the money to pay the $ 1,338, and ordered it to be paid directly to the defendant, as administrator, and it was so paid and received by defendant, without its passing through the hands of the attorney, L. H. Pike;" and that no valid order was ever made by any court of record directing the administrator of Thomas to pay L. H. Pike any sum for his services.

Luther H. Pike, in his lifetime, testified that he was a practicing attorney in the city of Washington, in the District of Columbia, and for many years had been prosecuting claims before congress, the court of claims, the executive departments, and United States commissioners. He explained the course necessary for him to take in order to collect the defendant's claim, as follows: "Congress, by act of March 4, 1871, created a commission of three members, generally known and designated as the 'Southern Claim Commission,' whose jurisdiction was to investigate the claims of persons in those states that had been declared in insurrection, who claimed they had been loyal to the government of the United States during the war of 1861-5, and had furnished or had taken from them stores and supplies for the use of the army of the United States; and to report to congress for its action the result of the investigation." Under the act of congress of March 3, 1883 (known as the "Bowman Act,") "the claimant had to go to congress, and get his claim referred to the court of claims. This was accomplished by a bill and petition prepared and presented by the attorney of the claimant being referred to the proper committee of either the senate or house of representatives, and by the attorney obtaining the order of the committee sending the claim to the court of claims. The first step in the court of claims was the preparation and presentation of a printed petition and copies for the claimant. The next was the taking of new and additional testimony. That done, the attorney prepared a brief for the trial of the question of loyalty, that fact being made jurisdictional. This brief consisted of all the evidence on loyalty, and the attorney's comments or arguments upon the same. Upon the attorney for the defense filing his brief on loyalty, that question was argued and submitted to the court, though, by agreement, this question was generally submitted without argument. If the finding of the court was in favor of loyalty, then the attorney prepared a brief upon the merits. This consisted of a request for findings of facts, and all the evidence upon the property furnished or taken, when, where, by whom, and its value. * * * When the government's attorney filed his brief on the merits, the case was argued and submitted; and, upon the court filing its findings of fact favorably, the attorney secured from the clerk's office a certified copy of it, filed the same with the committee that sent the case to the court of claims, thereby again bringing the claim before congress for appropriation of the money to pay the amount allowed by the court of claims. But, as the courts finding was not a judgment, but merely advisory to congress, and as congress had reserved the right to further investigate, the attorney had to attend to the reference of the claim to a subcommittee and the securing of a favorable report, and then work to secure the desired appropriation by congress."

As to the compensation received by attorneys for such services he says: "The rate of amount of compensation depends, in the first place, upon the amount and time of its payment. It is not worth while to speak of a retainer in cash, with balance during or at the conclusion of the prosecution of the claim. I am not aware of any such cases, and if there were any such the number is so small as not to create a rule."

"Section 823 of the United States Revised Statutes authorizing contracts for fees contingent upon success, the contracts have been almost universally of that character, either for 33 1-3 per cent., if the claimant paid current expenses of the prosecution, or 50 per cent. if the attorney paid them. The two principal considerations upon which such rates were established and stand are: (a) Uncertainty as to the length of time the attorney may have to be engaged in the prosecution of the claim, and the amount of labor and the time he may have to invest in it. * * * (b) Uncertainty as to the amount that may be recovered, there being the possibility of the amounts claimed being cut down to such a small figure as to make the attorney's percentage not fairly remunerative for his investment of time, labor and expenses paid in money."

He further testified that he undertook the collection of defendant's claim for $ 2,625, upon the terms stated in the contract sued on, it having been previously investigated and disallowed by the Southern Claims Commission, and the defendant having no money to defray the expenses of the prosecution; that he prosecuted it under the Bowman Act; and that he performed all the acts which he testified was necessary to be done in...