Schempp v. Davis
| Decision Date | 07 April 1919 |
| Citation | 211 S.W. 728,201 Mo.App. 430 |
| Parties | CHRISTIAN SCHEMPP, Appellant, v. JOHN B. DAVIS and ALTA DAVIS NICHOLSON, HENRY E. PERKINS, Intervenor, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Clinton Circuit Court.--Hon. Alonzo D. Burns, Judge.
Judgment affirmed.
William Henry and C. H. Harrison for appellant.
F. B Ellis and W. S. Herndon for respondents.
John B. Davis and Alta T. Davis were husband and wife, owning certain real estate in Clinton county, Missouri, as tenants by the entirety. She went to California, and in 1915 Davis brought suit in the Clinton Circuit Court to obtain a divorce, and also a suit to divest her of all interest in said real estate. Service was obtained by publication only the wife made no appearance, and on October 2, 1915 judgments for divorce and divesting her of title were rendered without her knowledge or any personal notice to her.
On September 11, 1916, Henry E. Perkins, a lawyer in said county, was employed by Mrs. Davis, then named Nicholson, to set aside and vacate the judgment rendered against her and wherein she was divested of title. This employment was by written contract and she agreed to give the attorney one-half of what was recovered.
Thereafter, on the 2nd day of January, 1917, Perkins, as attorney for Mrs. Alta Davis Nicholson and under said contract, took such steps in the circuit court of Clinton county as resulted in the judgment divesting title being set aside and, thereafter, upon a trial of the suit to divest title, the petition to divest was dismissed and judgment rendered for defendant, Mrs. Alta Davis Nicholson. In other words, Perkins succeeded in recovering for, and restoring to, her a one-half interest in the property involved.
Thereafter, Perkins, in behalf of his client, brought partition proceedings wherein John B. Davis was made a party and also certain persons having an interest therein by virtue of prior incumbrances thereon, one of these being Christian Schempp who is the plaintiff in the case now before us.
Thereupon, Schempp brought an attachment suit on a note he held against John B. Davis and Alta Davis Nicholson and, at the January, 1918, term obtained a personal judgment against John B. Davis and a judgment in rem against the interest of Alta Davis Nicholson in the real estate aforesaid. After judgment had been rendered in one of the partition suits (in which the real estate therein was ordered sold and the proceeds divided after first paying costs and incumbrances), but before the sale of that property and before the trial of the other partition suit which was pending, Schempp had an execution issued on his judgment against Davis and his former wife, and under said execution the interest of Alta D. Nicholson in all of the real estate was at the April, 1918, term sold to A. J. Althouse for $ 600 who then, in the absence of Perkins in France on military service, filed motions to dismiss the partition suits which was done.
Prior to this, however, and on February 4, 1918, during the January, 1918, term, Perkins had filed a petition in the attachment suit, claiming a lien on the real estate attached for his services in getting the title to the same revested in Alta D. Nicholson as hereinbefore stated, and asking that his lien be protected, and that, if said real estate was sold, one-half of the amount realized from Alta D. Nicholson's real estate be paid to him.
Plaintiff Schempp, at the April term, 1918, filed an answer to Perkin's petition which, in addition to a general denial of every allegation therein, alleged that "this is a suit in attachment of real estate and Intervenor's petition cannot be allowed in this suit."
The case between Perkins and plaintiff Schempp came on for trial at the April term, the plaintiff making no attack upon the petition save by way of an objection to the introduction of any evidence which was overruled. The evidence pro and con was heard, the matter taken under advisement by the court, and at the September term, 1918, the court rendered judgment in favor of Perkins and directed that one-half of the proceeds of the sale of Alta D. Nicholson's interest in the said real estate (which as stated was $ 600), to-wit, the sum of $ 300 be paid over to said Perkins or his attorneys of record. From this order and judgment the plaintiff Schempp has appealed.
There is no dispute over the facts, the evidence consisting of record entries and stipulated admissions. And it will be observed that at the time plaintiff Schempp brought his suit and attached Alta D. Nicholson's interest in the real estate, Perkins had obtained a judgment for her setting aside the decree fraudulently obtained, and it is conceded that when this was done the law vested the title to one-half of said real estate in her. In other words, Perkins had performed his service under his attorney's contract and if entitled to an attorney's lien at all, his right to a lien was complete at the time and before Schempp had commenced his suit.
It is contended that section 964, Revised Statutes 1909, giving attorneys a lien, does not afford a lien for the services rendered by Perkins. What were those services? It was the institution and prosecution of an action to set aside the fraudulent decree wherein she had been divested of her real estate, and the legal effect of this was to revest the title in her. An action is "the legal and formal demand on one's right from another person or party, made and insisted on in a court of justice." Black's Law Dictionary, 27; or, as Justinian tersely put it, an action is "the rightful method of obtaining in court what is due to anyone." A "cause of action" is difficult of definition because the phrase has many different and...
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