Repetto v. Raggio
| Decision Date | 06 May 1919 |
| Parties | LOUIS REPETTO, Administrator of the Estate of JOHN J. ROGERS, deceased, Plaintiff-Respondent, v. FRANCISCO RAGGIO and CHARLES FENSKY, Defendants-Appellants, MARSHALL A. STUTSMAN, Defendant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Glendy B. Arnold, Judge.
AFFIRMED.
Judgment affirmed.
Charles Fensky for appellants.
(1) The court erred under the law and the evidence in this case in sustaining the bill of interpleader. Freeland v Wilson, 18 Mo. 380; Railways Co. v O'Connor, 153 Mo.App. 128; Bland v Robinson, 148 Mo.App. 168-169. (2) The court erred in holding that the defendant Stutsman had an attorney's lien, under the law and the evidence in this case, upon a portion or all of the funds in the hands of the administrator, notwithstanding the order of distribution directed him to pay the full amount to appellant Raggio. Bland v. Robinson, 148 Mo.App. 168-169; Beardslee v Morgner, 73 Mo. 25; Young v. Thrasher, 48 Mo.App. 327; Chandler v. Dodson, et al., 52 Mo. 128; Orchard v. Storage Co., 225 Mo. 443; Gillett v. Camp, 19 Mo. 404. (3) The court erred in overruling this appellant's motions for a new trial and in arrest of judgment. (4) The court erred in refusing to dismiss respondent's bill when the court's attention was called to the answer of defendant Stutsman, wherein he sought by crossbill to obtain a judgment against respondent Repetto for a sum larger than he alleged in his petition, he held as an innocent stakeholder. An issue of personal liability was made by the pleadings. Smith v. Grand Lodge, 24 Mo.App. 202. (5) Upon the record, the pleadings and the evidence in this case, the court should have dismissed respondent's bill of interpleader. (6) The court erred in holding that an administrator after a final order of distribution could maintain a bill of interpleader, when only a portion of the total fund ordered to be paid to appellant Raggio by said order of distribution was claimed by defendant Stutsman. Bland v. Robinson, 148 Mo.App. 168-169. (7) Under the final order of distribution respondent Repetto as administrator was bound to pay the full sum coming to appellant Raggio and it was error to sustain said bill of interpleader for the reason that said order of distribution was ample protection to respondent Repetto, as administrator and his bondsman. State, ex rel. Harrison v. Babb, 77 Mo.App. 280; Railway Co. v. O'Connor, 153 Mo.App. 128. (8) The court erred in sustaining the objection to appellant Raggio's offer of proof as follows: That after November 3, 1914, no further proceedings were filed in the probate court by defendant Stutsman, nor did he appear in a representative capacity; that motions to discover assets and for removal of administrator were filed by defendant Charles Fensky for and on behalf of all heirs; that defendant Stutsman, after said date, took no part or did anything further or offered to do anything further in the matter of motions to discover assets; that in July, 1914, the entire estate was settled by and between the representatives of respondent Repetto and defendant Charles Fensky, representing all of the heirs of said estate; also to introduce the statutes of the State of California to show that they were never subject to the common law and for the further purpose of showing that California had no attorneys' lien law. (9) The decree sustaining the bill of interpleader is against the law under the evidence, and not supported by the evidence. (10) There is no evidence in the record that defendant Stutsman rendered any legal services in a proceeding pending in the probate or any other court in this State. (11) The attorneys' lien law does not apply to probate business or its administration. (12) A non-resident attorney has no lien under a contract made in another State with a non-resident client, on his client's cause of action, in this State, even though such cause of action came within the enumerations of Missouri attorneys' lien law.
S. J. Walton for respondent.
(1) A final judgment from which no appeal is taken does not protect a debtor against an attorney's lien. Nor does it prevent a judgment debtor from maintaining a bill of interpleader. Nicola v. Car & Foundry Co., 185 Mo.App. 285. (2) An attorney' lien is a valid assignment pro tanto. Lawson v. Telephone Co., 185 Mo.App. 124, l. c. 132. (3) In order that an attorney may have a lien for his fee it is not necessary, when the proper notice is served, that he appear in court, or that any suit or action ever be instituted in his client's behalf. Sec. 965, R. S. 1909. (4) The dismissal of defendant Stutsman's crossbill had the same effect, so far as the amount in controversy is concerned, as an amended bill would ordinarily have, and amendments correcting the amount in a bill of interpleader are permissible. Section 1848, R. S. 1909; Smith v. Grand Lodge, 124 Mo.App. 181, 208. (5) Claims of third persons against distributees must, if an adjudication becomes necessary, be tried in a court of general jurisdiction, and not in the probate court. When facts exist which might put the administrator in jeopardy by paying a distributee he has a right to have a competent tribunal determine to whom the share belongs. Johnson v. Jones, 47 Mo.App. 237, 242. (6) Independent of any statutory right, an attorney may acquire an equitable lien on the proceeds of his client's claim or cause of action, for his fee. Ingersoll v. Coram, 211 U.S. 335; Barnes v. Alexander, 232 U.S. 117. (7) A stakeholder who is honestly in doubt as to which of two claimants demanding a fund is entitled thereto will not be compelled to determine, at his own risk, close questions of law or fact, but may require the claimants to interplead. Smith v. Grand Lodge, 124 Mo.App. 181, 203.
Jourdan, Rassieur & Pierce for Louis Repetto, Administrator, plaintiff-respondent.
E. E. Rudolph and Claude O. Pearcy for Marshall A. Stutsman, defendant-respondent.
(1) After a stakeholder has actually been forbidden by one of the claimants to pay over the fund to another, he is not bound to exercise any judgment in the matter whatever as to who is, or who is not, entitled, and is permitted to discharge himself by invoking the aid of the court by an interpleader, and it is well settled that a valid doubt respecting either a question of fact or law is sufficient in this behalf for the stakeholder under such circumstances, and he is not required at his peril to decide either close questions of fact or nice questions of law. It is sufficient for him that he be disinterested, and, in good faith, is in doubt as to which of the claimants is entitled to the fund, whether that question arise out of law or fact. Smith v. Grand Lodge A. O. U W., 124 Mo.App. 181, 203; Little v. St. Louis Union Trust Company, 197 Mo. 281; Modern Woodmen of the World v. Wood, 100 Mo.App. 655; 5 Pomeroy Equity Jurisp., sec. 40. (2) The question of whether the respondent, Stutsman, is entitled to the fund held by respondent, Repetto, is one of fact and law, involving as it does whether he was justly or unjustly discharged and also whether the law allows him a lien to the extent of his contract in this kind of proceedings, and the respondent, Repetto, as administrator, is not obliged at his peril to determine in advance whether under the law and facts he is entitled to such lien, but is entitled to interplead and let that matter be determined in the trial between the parties contending for the fund. See authorities under point 1. (3) The probate court cannot, either before or after final settlement or upon order of distribution, litigate and adjudicate the controversies between distributees and their assignees or those with whom they have entered ino contracts involving a part of their share. It is only proper to determine that question after final order of distribution has been made, by the administrator filing an interpleader or impounding the share in a court of general jurisdiction. Johnson v. Jones, 47 Mo.App. 237; State ex rel. Jones v. Jones, 53 Mo.App. 217; Cauley v. Truitt, 63 Mo.App. 356; In re Winnegars Estate, 118 Mo.App. 445, 448-9; In re Wood Estate, 138 Mo.App. 258, 262-3; In re Estate of Strom, 134 Mo.App. 340, 348. (4) The amount held by the respondent, Louis Repetto, is exactly twenty-three per cent of the amount adjudged by the probate court to be due Francisco Raggio upon final settlement, and is therefore prima facie subject to the statutory attorney's lien of respondent Stutsman under his contract with appellant. See R. S. 1909, secs. 964-5; Elam v. Bond, 169 Mo.App. 584, 592. (5) Irrespective of the question of lien under the Missouri statute, the contract of respondent, Stutsman, with appellant was such as to create a prima facie present equitable right or title in an amount to be recovered in the future, and constituted an equitable assignment of the twenty-three per cent called for by the contract. Schubert v. Herzberg, 65 Mo.App. 578; Crecelius v. Bierman, 72 Mo.App. 355; Wabash Railway v. Bowring, 103 Mo.App. 158; Ingersoll v. Coram, 211 U.S. 355; Barnes v. Alexander, 232 U.S. 117; Wylie v. Coxe, 15 Howard, 415; 3 Pomeroy's Equity Jurisp., (3 Ed.), secs. 1235-36; Bispham's Principles of Equity (9 Ed.), pages 568 and 569; Deering v. Schreyer, 58 App.Div. (N.Y.) 322 68 N.Y.S. 1015; Harwood v. La Grange, 137 N.Y. 538, 32 N.E. 1000. (6) The contract of Stutsman also constituted an equitable lien upon the proceeds to be recovered whenever they came into existence. Wait v. Railroad, 204 Mo. 491; Bispham's Principles of Equity (9 Ed. 1915), sec. 351, p. 568; Bispham's Principles of Equity (9 Ed. 1915), sec. 165, p. 279; Pomeroy's Equity Jurisp., sec. 1235; Cases under point 5. (5) A creditor can assign a fraction...
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