Smoot v. Shy

• Decision Date: 15 July 1911
• Citation: 159 Mo. App. 126,139 S.W. 239
• Parties: SMOOT et al. v. SHY.
• Court: Missouri Court of Appeals

139 S.W. 239

159 Mo. A. 126

SMOOT et al. v. SHY.

St. Louis Court of Appeals. Missouri.

July 15, 1911.

1. ATTORNEY AND CLIENT (§ 190)—ATTORNEY'S LIEN—ENFORCEMENT—REMEDIES.

Rev. St. 1909, § 964, provides that, from the commencement of an action or the service of an answer containing a counterclaim, the attorney appearing for a party has a lien on his client's cause of action or counterclaim, which attaches to a verdict, report, or decision in his client's favor, and the proceeds thereof, into whosesoever hands they may come, and cannot be affected by any settlement of the parties before or after judgment. Held that, though no remedy is provided by such section, the lien created may be enforced by motion to set aside satisfaction and to award execution to the extent of the lien, or, where the proceeds of a judgment, subject to an attorney's lien, have been paid to another, the attorney may sue in equity to follow the same, even against a party who has made a settlement in disregard of the attorney's contract, provided he had notice, as required by section 965, or, if the settlement is made after suit, no notice is necessary.

2. ATTORNEY AND CLIENT (§ 183)—ATTORNEY'S LIEN — ENFORCEMENT — "COMMENCEMENT OF ACTION."

After sale of certain real estate in partition for an alleged inadequate price, plaintiffs were employed to have the sale set aside and procure a new sale; the owners agreeing each to pay 20 per cent. of their proportion of any increase obtained on resale. A new sale was ordered and an appeal to the Supreme Court dismissed, and on a new sale the property was sold at an increase of $5,200; but in the meantime the original purchaser, who became the purchaser at the resale, had obtained by assignment the interest of two of the co-owners of the property, with notice of the contract for plaintiffs' fees, and refused to pay plaintiffs the proportionate share of the increase to which the purchaser's assignors were entitled. Held, that the filing of the motion to set aside the original sale was the "commencement of an action," within Rev. St. 1909, § 964, providing that from the commencement of an action, or the service of an answer containing a counterclaim, the attorney appearing for a party has a lien on his client's cause of action and on the proceeds of a report, decision, or judgment in the client's favor, in whosesoever hand they may come, and that plaintiffs were entitled to enforce such lien to the extent of their fees against the purchaser.

3. ATTORNEY AND CLIENT (§ 190) — ATTORNEY'S LIEN—ENFORCEMENT—COMPLAINT.

Where, in a suit to enforce an attorney's lien against the proceeds of a sale of certain property in partition, a petition alleged that the purchaser received the interest of certain minors, pursuant to an assignment by their guardian pendente lite, and that plaintiffs' contract for fees, so far as such minors were concerned, was duly and legally made for and on behalf of the minors by their father, guardian, and curator, the complaint was not demurrable for failure to allege that the guardian was authorized by the probate court to make the contract with plaintiffs as to their fees.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by John D. Smoot and others against Simeon Shy. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded.

Smoot, Boyd & Smoot and J. D. Hostetter, for appellants. D. A. Ball, for respondent.

REYNOLDS, P. J.

Under an order of sale made by the circuit court of Pike county, in a suit for partition of real estate there pending, the property was bid off by one Simeon Shy, respondent here, for the sum of $8,300, or at the rate of $41.59 an acre. On the report of the sale coming in, all the parties to the action objected to the confirmation of the sale on various grounds, and moved to set it aside. The motion was filed on behalf of all the parties of record to the action in partition, by plaintiffs here, a firm of lawyers who became attorneys of record in the cause so far as involved the matter of the motion, although they had not previously been attorneys of record in the action for partition itself. Mr. Shy, who is the respondent in the case before us and who was the purchaser at that sale, appeared in opposition to that motion, being represented by his own attorneys. On hearing the motion was sustained and the sale was set aside. Whereupon Mr. Shy, through his attorneys, filed a motion to vacate that order and this latter motion being overruled, he prosecuted his appeal to the Supreme Court of this state. There the cause coming on for hearing on that appeal, the appeal was dismissed. See Thomas v. Elliott, Simeon Shy, Appellant, 215 Mo. 598, 114 S. W. 987. The action of the circuit court in setting aside the sale consequently stood, and a new sale being ordered, the property was again put up and on the second sale, Mr. Shy again being purchaser, it brought $13,500, or $67.50 per acre; that is an increase of $5,200 on the whole tract, or $26 per acre.

Plaintiffs, under their firm name of Smoot, Boyd & Smoot, had acted in the matter of filing the motion to set aside the sale and in following the case to the Supreme Court as attorneys for and in behalf of all the owners of the property. They did this under a contract with all the parties to the partition, under and by the terms of which it was agreed that if they succeeded in bringing about an order disapproving the sale and in procuring an order for resale, they should receive for their services, from each of the parties, out of the proceeds of the resale, 20 per cent. of the amount the land brought at the resale in excess of the original price, that is in excess of $41.50 per acre, each interest agreeing to pay that out of its share. That is to say, plaintiffs took up the matter of setting aside the first sale and procuring an advanced price at a resale, on a contingent fee of 20 per cent. of whatever the land should sell for on a resale, if it sold at a price in excess of $41.50 per acre, the owners of each one-seventh severally agreeing to this. There were seven interests in the estate, one of these sevenths being held by four minors, the Williams children, the contract on behalf of the minors with plaintiffs for their services as attorneys being made for them by their father, who, as it is alleged, was also their duly qualified and acting guardian and curator and authorized to make the contract. Another seventh was held by one Laura A. Elliott. The 20 per cent. contingent fee which plaintiffs were entitled to receive was $148.50 on each seventh interest, that sum being 20 per cent. of the excess which each seventh interest realized in consequence of the resale over what would have been realized on the...