Senneff v. Healy
| Decision Date | 14 March 1912 |
| Citation | 135 N.W. 27,155 Iowa 82 |
| Parties | A. SENNEFF and D. M. KELLEHER, Appellants, v. MARY L. HEALY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--HON. R. M. WRIGHT, Judge.
THIS is a controversy over the distribution of attorney's fees growing out of a contract for a part of the recovery in the case of Wells v. W. U. Tel. Co., which case finally reached this court, and was disposed of by an opinion reported in 144 Iowa 605. The trial court made a division according to the terms of the contracts entered into between the attorneys and plaintiffs appeal.
Affirmed.
Maurice O'Connor and W. L. Bliss, for appellants.
Healy & Healy, for appellee.
Plaintiffs are attorneys at law, and at the time this controversy arose Senneff lived at Britt, and Kelleher at Ft. Dodge. Thos. D Healy, now deceased, was also a lawyer living at Ft. Dodge. Plaintiff Senneff was employed by one Wells to prosecute a suit against the Western Union Telegraph Company under an arrangement substantially as follows: After making this contract with Wells, Senneff through correspondence and in various interviews, arranged with Kelleher and Healy to assist in the litigation with the understanding among all that each should share equally in the contingent fee in the event of ultimate recovery.
The case in which these attorneys were employed had a somewhat remarkable history. The action was first brought by Schriver Bros. and the Commercial Bank of Britt against the telegraph company in the federal court for the Northern District of Iowa; the law firm of Healy Bros. being the sole attorneys for the plaintiffs therein. Judgment was obtained in the lower court, which was later reversed by the United States Circuit Court of Appeals. Some time during the pendency of this suit, Mr. Kelleher became a partner in the law firm of Healy Bros., and he immediately went to work upon the case. After the reversal the case was again tried in the federal District Court, resulting in a verdict and judgment for plaintiffs. Again the case was appealed, and again there was a reversal. The firms of Healy Bros. and of Healy Bros. & Kelleher did a vast amount of work upon the case, both in preparation for the trial nisi and upon the appeals. After the second reversal, the case rested quitely for a time, and during its quiescent stage the firm of Healy Bros. & Kelleher dissolved; Kelleher retiring. About this time Schriver Bros. and the Commercial Bank assigned their claim against the telegraph company to A. Judson Wells, a resident of the state of New York, preliminary to the institution of an action in the state court. Thereupon plaintiff Senneff was employed by Wells to prosecute the action in the local courts under the agreement hitherto set out, and Senneff made the arrangements with Kelleher and Healy as before indicated. Both Kelleher and Healy were very familiar with all the propositions of law and fact involved in the case because of their prior connection with it. It had been thoroughly briefed for the two appeals, and but a single new question remained open, as will be observed from the opinion disposing of the case in this court. The case went to trial in the district court of Webster county, Iowa, at its January, 1908, term, resulting in judgment for Wells in the sum of $ 12,000. Upon this trial the case was handled largely by Kelleher and Healy because of their familiarity with the record and the legal propositions involved. Thereafter the telegraph company appealed the case to this court, and during the pendency of the appeal Thos. D. Healy died; his death occuring in January of the year 1909. Senneff and Kelleher followed the case to this court, preparing an amended abstract, writing the arguments, and making oral arguments here. As will be noticed, the appeal was unsuccessful, and the judgment was affirmed. On July 30, 1908, the attorneys for Wells filed in the office of the district court of Webster county a notice of an attorney's lien in the sum of $ 6,000. After the affirmance here, the defendant paid to the clerk of the Webster county district court the sum of $ 13,420.94 in satisfaction of the judgment against it. The attorney's lien was released by the surviving attorneys, and the entire fee withdrawn from the clerk's office. After the beginning of this suit, which was to settle the rights of the respective attorneys, or their representatives to the fund, one-third of the fee going to all, to wit, $ 1,491.62 was deposited with the clerk to await the decision of the case. Mary L. Healy, the executrix and sole beneficiary under the will of Thos. D. Healy, deceased, was made a party defendant, and as such she insisted that she was entitled to the full one-third of the contingent fee, pursuant to the arrangement and agreement between the parties, notwithstanding the death of her husband, Thos. D. Healy, during the pendency of the appeal. On the other hand, plaintiffs say that she is not entitled to the whole thereof, but that it should be charged with some offset or be subject to some diminution because of the work done by them after the death of Healy. These are the only questions in the case.
Plaintiffs, who are appellants, insist upon the following propositions:
(1) Where performance of contract for service of an attorney is interrupted by his death, there can be no recovery on the contract or of more than that proportion of the contract price which the services rendered bears to the whole services contracted for.
(2) Where a contingent fee contract is made for services of two attorneys, and one dies even though the survivor carries on and successfully concludes the litigation with other assistants that he employs, will not entitle a recovery on the original contract. Such contract terminated upon the death of either lawyer whose services were contracted.
(3) There was no partnership relation between the plaintiffs and Thos. D. Healy, deceased. There was therefore no basis to impute an obligation or duty upon the part of the plaintiffs to perform the services contracted to be rendered by Thos. D. Healy for the benefit of his estate.
(4) The award made to the appellee by the lower court was affirmative relief granted on her claim to the full fee, and was unwarranted by the facts.
The main though underlying each of these propositions is that, as Healy died before the case was finally decided upon appeal to this court, neither he nor his representative is entitled to the full one-third of the contingent fee, but that it should be divided in the light of the services performed by plaintiffs after Healy's death. It is true, of course, that these attorneys were not a copartnership; but it is equally clear that after the recovery of the judgment in the trial court, which was before Healy's death, they were jointly interested in that judgment, and each and all desirous of sustaining it for his own individual benefit. There was at all times a joint adventure which did not amount to a partnership; but which is governed in many respects by the rules applicable to partnerships. This thought is well expressed in Jackson v. Hooper, 76 N.J.Eq. 185 (74 A. 130); Berry v. Colborn, 65 W.Va. 493 (64 S.E. 636, 17 Ann. Cas. 1018); Runkle v. Burrage et al., 202 Mass. 89 (88 N.E. 573 at 577); Botsford v. Van Riper (Nev.) 110 P. 705.
What, then, are the respective rights of the parties to a joint adventure such as this under the facts disclosed? Did the death of Healy after the recovery of the judgment operate to diminish the amount to which he would have been entitled had he lived and presented the case to this court upon appeal? In other words, should the amount which his representative is to receive be diminished because the surviving parties to the joint adventure went ahead with the work, and perhaps did more than they would had all survived and followed the case to the end? Under our statutes joint tenancies with right of survivorship are not favored, and, although there may be joint ownership or ownership in common of personalty, it makes little difference which we call it in this case, the property does not go to the survivors in case of the death of one or more of the joint owners. Parsons in his law of Partnership states the following rules which we regard as applicable to the present controversy:
There is not in partnership the same survivorship as in joint tenancy; but there is a survivorship which is peculiar to partnership. The death of a partner invests the surviving partners with the exclusive right of possession and...
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