Smith v. Wright

• Decision Date: 30 January 1911
• Citation: 153 Mo. App. 719,134 S.W. 683
• Parties: SMITH v. WRIGHT et al.
• Court: Missouri Court of Appeals

134 S.W. 683

153 Mo. A. 719

SMITH v. WRIGHT et al.

Kansas City Court of Appeals. Missouri.

January 30, 1911.

Rehearing Denied February 13, 1911.

1. ATTORNEY AND CLIENT (§ 177)—LIEN OF ATTORNEY.

An attorney who brings an action as attorney of record and an attorney, employed by the attorney of record for the client and by his authority, to assist during the progress of the case, are both within the statute giving an attorney a lien for his fee.

2. ATTORNEY AND CLIENT (§ 177)—LIEN OF ATTORNEY.

Where an attorney employed by a client to prosecute a suit for a contingent fee, employed for himself and not as agent of the client, another attorney to assist in the trial, the latter attorney had no lien for his fee under the statute.

3. ATTORNEY AND CLIENT (§ 158)—COMPENSATION—NATURE OF REMEDY.

An attorney, employed by the attorney of record on his own behalf and not as agent of the client, who had agreed to pay the attorney of record only a contingent fee, may not sue in equity for his compensation, but must resort to an ordinary action at law against the attorney of record.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by Richard J. Smith against George W. Wright and another. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

E. S. Herider, for appellant. Sutton & Sutton, Geo. H. English, Jr., John H. Lucas, and Douglass & Watson, for respondents.

ELLISON, J.

Anthanette Heinzle was a minor. She was injured in Kansas City while a passenger on the Metropolitan Street Railway. She brought an action for damages through her "next friend." Defendant George W. Wright was employed as attorney by the next friend, to prosecute the suit, and a judgment of $10,000 was recovered which was affirmed on appeal; the accumulated interest pending the appeal making the total judgment $12,203.33. The contract between Wright and the next friend was in writing, and provided that he should receive a contingent fee of one-half of whatever sum was recovered from the street railway company. After the action was begun, and while it was pending in the trial court, Wright verbally employed the plaintiff to assist him in the case, agreeing to pay him for his services one-third of the fee he, Wright, was to receive, which would be one-third of one-half of the judgment if any was recovered. When the judgment was affirmed, the Metropolitan Street Railway paid all but $1,200 of the amount, and the plaintiff, through her next friend, and with the approval of the probate court, accepted one-half of the total amount thereof as in full of her interest. Wright received the balance, except the $1,200 just mentioned, as his fee under the contract, but refused to pay one-third thereof to this plaintiff alleged to amount to $1,120. Plaintiff thereupon instituted this proceeding in equity, by petition in three counts, alleging, in substance, the foregoing facts, to restrain the street railway company from paying the $1,200 to Wright, and seeking, in one count,...