Smith v. Nicholson
| Decision Date | 01 February 1926 |
| Citation | 289 S.W. 349,221 Mo.App. 428 |
| Parties | JOSEPH SMITH, PLAINTIFF, v. FRANK NICHOLSON, ET AL., DEFENDANTS. [*] NICK M. BRADLEY AND E. C. LITTLEFIELD, INTERPLEADER, APPELLANTS, v. R. M. ROBERTSON, FRANK C. NICHOLSON, AND JOSEPH SMITH, INTERPLEADERS, RESPONDENTS |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Johnson County.--Hon. Ewing Cockrell, Judge.
Judgment affirmed.
Nick M Bradley and E. C. Littlefield for appellants.
R. M Robertson and M. D. Aber for respondents.
Trimble, P. J., absent.
This is an action in equity wherein by interpleas the rightful ownership of an attorney's fee is sought to be determined.
The controversy arose in the case of Joseph Smith v. Frank C. Nicholson, et al., for damages for personal injuries. The facts disclosed are that on April 18, 1923, Joseph Smith was injured while in the employ of defendant at their brick plant at Knobnoster, Johnson county, Missouri. In an attempt to adjust the claim for damages filed by Smith, it developed that defendants were protected by a policy of indemnity insurance issued by the U.S. Fidelity & Guaranty Company of Baltimore, Md. Through the local agent of the Guaranty Company, one Johnson of Warrensburg, Mo., the claim was brought to the attention of the proper officials of that company. After some ineffectual efforts to settle the claim out of court a suit was instituted in the circuit court of Johnson county, and before the cause was tried a settlement was effected and on November 24, 1924, by agreement of parties, judgment was entered for $ 500 for plaintiff. This judgment was entered against Frank C. Nicholson and the case dismissed as to all other defendants.
On November 13, 1925, R. M. Robertson, an attorney at Warrensburg, Mo., served upon defendant Nicholson formal notice, in addition to having previously entered his name on the court records as attorney for plaintiff, of his claim of a lien against the cause for attorney's fee. After entry of the said judgment, Robertson, Bradley and Littlefield made adverse claims for the attorney's fee in the case. Thereupon, on December 10, 1924, defendant Nicholson filed his petition, or motion, in the cause asking that the respective claimants for the said fee be required to interplead to establish their respective rights in the premises.
The said petition, or motion, is formal and states that during the pendency of the trial of the case of Smith v. Nicholson, et al., plaintiff was represented by attorneys E. C. Littlefield and Nick M. Bradley; that said affiant is informed and believes that E. C. Littlefield holds a contract of employment as attorney in the cause, and that by said contract plaintiff has agreed to pay said Littlefield and Bradley one-half the amount received by the judgment; that said Bradley and Littlefield are claiming the same; that one R. M. Robertson has served notice in writing on defendant that said Robertson has a contract of employment with plaintiff; and that plaintiff has also agreed to pay said Robertson one-half of whatever amount might be recovered in the cause; that said Littlefield and Robertson each claim to have a lien upon said judgment for their respective attorney's fee. That plaintiff Smith, attorneys Littlefield and Bradley and said Robertson are all claiming said judgment, or a part thereof, each demanding payment of the same; that there is a controversy among said parties as to whom said judgment shall be paid, or what part thereof shall be paid to each of them; that because of this situation the defendant is in danger of having to pay said judgment, or a portion thereof, twice, and possibly three times. The court is asked to require the said Joseph Smith, E. C. Littlefield, Nick M. Bradley and R. M. Robertson to interplead herein in order that the court may determine and adjudge each and all the several interests claimed. Defendant also asks to be allowed to pay the sum of $ 548.95 into court for and in satisfaction of said judgment, to be distributed among said claimants as the court may determine and direct; that the defendant be allowed a fee of $ 50 for his expenses, costs and attorney's fee in filing said application, that the same be taxed as costs and paid out of the money paid into court.
On December 29, 1924, plaintiff Smith filed his motion asking that defendant's petition for interpleas be dismissed. The motion to dismiss was overruled by the court on December 29, 1924, and the petition, or motion for interpleas, was sustained and the parties ordered to interplead. On the same day Robertson filed his interplea and on January 3, 1925, Littlefield and Bradley filed their joint interplea. The cause was tried on January 3, 1925, a jury being impaneled by the court to assist in determining certain questions of fact, as follows:
Objection to the action of the court in submitting said questions of fact to the jury was made by Littlefield and Bradley, upon the ground that whether Robertson employed Littlefield to assist him is not an issue in the case. The objection was overruled.
At the close of the testimony, the jury returned their verdict on findings of fact, as follows: That Joseph Smith employed attorney R. M. Robertson and agreed to give him one-half of any proceeds recovered in the suit in question; that Joseph Smith employed R. M. Robertson on a contingent fee of one-half the amount recovered, and that thereafter attorney Robertson employed attorney Littlefield.
Upon this finding, the court entered of record the following judgment:
"Wherefore the court adjudges that the lien of R. M. Robertson for $ 250 of said $ 500 judgment be and is established; that defendant Frank C. Nicholson pay to said R. M. Robertson said sum of $ 250; that interpleaders Littlefield and Bradley recover nothing herein; that defendant Nicholson pay to said Smith the sum of $ 250 and all costs in said cause, except costs connected with this interplea; that said Littlefield pay all costs of said interplea; that defendant be allowed an attorney's fee of $ 25, and that on account of the jury having found that plaintiff Smith did not testify correctly as to his employment of attorney Robertson, said $ 25 fee is to be deducted from the said $ 250 to be paid said plaintiff."
Motions for new trial and in arrest of judgment were unavailing and Bradley and Littlefield appeal.
In support of their joint interplea said Bradley and Littlefield introduced in evidence the judgment of record in the original action, and also the written agreement whereby plaintiff employed E. C. Littlefield as his attorney to institute and conduct the suit. This agreement is in words and figures as follows:
Evidence also was introduced showing that Littlefield, with authority from plaintiff, employed Nick M. Bradley to assist in said prosecution. Testimony in behalf of Littlefield and Bradley further showed they prepared and filed the original petition in the case and conducted the matters in plaintiff's behalf which ended in the judgment for plaintiff as above detailed.
The testimony in behalf of interpleader Robertson showed that on May 22, 1923, plaintiff Smith called on Robertson at the latter's...
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