Roberts v. Nelson

• Decision Date: 20 April 1886
• Citation: 22 Mo.App. 28
• Parties: W. G. ROBERTS ET AL., Appellants, v. R. S. NELSON, Respondent.
• Court: Missouri Court of Appeals

22 Mo.App. 28

W. G. ROBERTS ET AL., Appellants,

v.R. S. NELSON, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 20, 1886.

APPEAL from the Greene County Circuit Court, W. F. GEIGER, Judge.

Reversed and remanded with directions.

C. W. THRASHER, for the appellants: The motion of the plaintiffs filed in this cause in the court below, to set aside and vacate the wrongful and unauthorized entry of satisfaction of the judgment on the margin of the record thereof by the attorney for the plaintiffs, and for an execution in conformity with said judgment, was the proper proceeding for the enforcement of said judgment against the defendant. Cohen v. Camp, 46 Mo. 179; Freeman on Executions, sect. 361. Said judgment not having been paid, the entry of satisfaction of the same on the margin thereof, by the attorney of record for the plaintiffs, was without authority, and void. Wheeler v. Givan, 65 Mo. 89; Walden v. Bolton, 55 Mo. 405; Spears v. Ledergerber, 56 Mo. 465; Semple v. Atkinson, 64 Mo. 306; Deland v. Hiatt, 27 Cal. 611; Mitchell v. Hackett, 14 Cal. 661; Codwise v. Field, 9 Johns. 263.

GOODE & CRAVENS, for the respondent: Price, being attorney of record, for the plaintiffs, under an employment for a conditional fee of one-half of whatever might be recovered, had a vested interest in the judgment and all other judgments, and, therefore, equitable owner with the plaintiffs, growing out of said employment, to the extent of said one-half, and, therefore, had a perfect right to enter satisfaction of such judgment for any consideration satisfactory to himself, and such entry should stand unless the same would operate as a fraud upon the plaintiffs. Wylie, Adm'r, v. Cox, 15 How. (U. S.) 415; Coughlin v. Railroad, 71 N. Y. 443; Brown v. Bigley (Tenn.) 7 Cent. Law Journal, 110; Miller v. Newell, 20 S. Carolina 122; Marshall v. Murb et al., 57 N. Y. 140. Price's relation to the parties, and the subject-matter in controversy gave him a vested interest in the judgment, and, therefore, a lien upon the same. And whenever an attorney, either by law or by virtue of contract, has a lien upon the judgment, he has the right to satisfy it. Marshall v. Meech et al., 51 N. Y. 140; Olds v. Tucker, (Ohio, 1880) 10 C. L. J. 378.

ROMBAUER, J., delivered the opinion of the court.

The plaintiffs, on February 1, 1883, recovered a judgment against the defendant for the possession of certain premises, $234.98 damages, and $15.25 monthly rents and profits, which, upon appeal, was affirmed by the supreme court.

W. C. Price, the plaintiff's attorney, claiming an interest in said judgment, immediately after its affirmance, and before any execution issued thereon, entered into an agreement with the defendant, whereby, in consideration that the defendant would attorn to him, and pay the amount of the judgment at his convenience, said Price agreed to satisfy the judgment.

The defendant thereupon did attorn to Price, paid all the costs that had accrued, and also paid to Price the sum of twenty-five dollars, who thereupon made the following entry on the margin of the judgment record:

“Received in full satisfaction of the judgment the possession of the premises adjudged to be restored, and the damages, and monthly rents and profits, the costs to be paid by the defendant.

WM. C. PRICE,

Attorney of Record for Plaintiffs.”

The plaintiffs, learning of this, filed their motion to vacate this entry of satisfaction, and for an execution for the damages and rents adjudged, and a writ of restitution of the premises. This motion, upon hearing, was overruled by the court, as to the money demand, but sustained in so far as to order a writ of restitution for the land. From this judgment the plaintiffs appeal.

The evidence admitted on the part of the defendant, against the plaintiff's objections, tended to show that Price, as attorney for the plaintiffs, undertook to prosecute this claim, and other claims of the plaintiffs', upon a contingent fee of one-half of the recovery, and that in one of the cases, more than double the amount of the damages recovered in this proceeding had been collected by the plaintiffs, or to the plaintiffs' use, of which amount thus collected Price had received nothing. There never was any settlement between the plaintiffs and Price touching these matters, nor was there any assignment of the judgment in controversy by the plaintiffs to Price. Price never was authorized by the plaintiffs to compromise this judgment, or to extend its payment for any definite time. The testimony concedes that, prior to the agreement between Price and the defendant, as above set out, the plaintiffs notified the defendant not to pay any part of the judgment to Price, as he was not authorized to receive it. The testimony further concedes that the defendant was aware that Price entered into the agreement above set out with him, for the purpose of forcing a...