State ex rel. Anderson v. Roehrig

• Decision Date: 30 July 1928
• Docket Number: No. 28623.,28623.
• Citation: 8 S.W.2d 998
• Parties: THE STATE EX REL. BEN M. ANDERSON v. EMIL ROEHRIG, Judge of Eleventh Judicial Circuit, and W.C. IRWIN.
• Court: Missouri Supreme Court

8 S.W.2d 998

THE STATE EX REL. BEN M. ANDERSON v. EMIL ROEHRIG, Judge of Eleventh Judicial Circuit, and W.C. IRWIN.

No. 28623.

Supreme Court of Missouri, Court en Banc.

July 30, 1928.

Prohibition.

PROVISIONAL RULE DISCHARGED.

Fry & Hollingsworth for relator.

(1) Sec. 1836, R.S. 1919, did not authorize the respondent judge to make an order impounding the proceeds of the judgment in the suit for rents and profits to secure the payment of any judgment that Sutton might obtain against Anderson in the suit for improvements. Tissier v. Hill, 13 Mo. App. 40; State ex rel. v. Foard, 251 Mo. 51. (2) Prior to the enactment of the attorneys' lien statute (Secs. 690, 691, R.S. 1919) attorneys had no lien for services in this State. Gulick v. Huntley, 144 Mo. 252; Young v. Renshaw, 102 Mo. App. 184. The lien must be enforced as a statutory lien as distinguished from an equitable lien. (3) The attorney's action, a suit upon an alleged contract, is essentially a suit at law for money, triable before a jury. Sec. 1398. R.S. 1919. And, while it is true, that by virtue of statute he is given a lien for any judgment he may obtain, yet his lien must be enforced in an action at law. Young v. Renshaw, 102 Mo. App. 184. (4) A court of equity will not enforce a statutory lien when there is an adequate remedy at law. 27 R.C.L. 614; Aldine Mfg. Co. v. Phillips, 42 L.R.A. 531; Young v. Renshaw, supra.

Irwin & Bushman for respondents.

(1) The attorney's lien provided in Secs. 690, 691, R.S. 1919, may be enforced by equitable proceedings. Gillham v. Met. St. Ry. Co., 282 Mo. 128; Wait v. Railroad, 204 Mo. 496; Fischer-Hanson v. Railroad, 173 N.Y. 502; In re King, 60 N.E. 1056; Jameson & Smyth v. Rauch, 119 N.W. 76; Fuller v. Clemmons, 48 So. (Ala.) 101; Bayou Dg. Dist. v. Chapline, 220 S.W. 807; Greenlee v. Roland, 107 S.W. (Ark.) 193; Swan v. Taber, 266 S.W. 755; 37 C.J. 340. (2) The court may, when the judgment or its proceeds are yet under its control, on motion, ascertain the lien and determine its amount. Young v. Renshaw, 102 Mo. App. 187; Wait v. Railroad, 204 Mo. 495; Conkling v. Austin, 111 Mo. App. 302; Gillham v. Met. St. Ry. Co., 282 Mo. 128; In re King, 60 N.E. 1056; Goodrich v. McDonald, 112 N.Y. 165; Morey v. Schuster, 142 N.Y. Supp. 1054, 217 N.Y. 639; Fuller v. Clemmons, 48 So. 101; 6 C.J. 408; Bray v. Staples, 180 Fed. 321. (3) The constitutional right of trial by jury applies only to rights that existed at common law before the adoption of the Constitution, and does not apply to new rights created by the Legislature since the adoption of the Constitution. St. Louis, I.M. & S. Ry. Co. v. Hays & Ward, 195 S.W. 31; In re King, 60 N.E. 1056; Shepherd v. Steels, 43 N.Y. 57; Thompson v. Ry. Co., 45 N.Y. 473.

RAGLAND, J.

Prohibition. Following the filing of a return by respondent, Judge of the Circuit Court of Audrain County, to the provisional rule issued herein, relator moved for judgment on the pleadings. The facts set forth in the return are therefore to be taken as true. Many of them, however, have no bearing on the questions at issue between the parties in this proceeding and will therefore be ignored. The relevant facts are briefly these:

In the latter part of 1919 or the early part of 1920, relator, Ben M. Anderson, was claiming title to approximately 400 acres of accreted land lying along the Missouri River in Boone County. One Sutton also claimed title to the land and was in possession. In this situation relator commenced two suits against Sutton: seeking by one to have the question of title adjudged in his favor; and by the other to recover possession of the land, together with rents and profits. Both were instituted in the Circuit Court of Boone County; the first culminated in a final judgment in relator's favor in 1922; the second, after two trials in the Circuit Court of Boone County followed by appeals to this court, was transferred on change of venue to the Circuit Court of Audrain County. On a trial in that court relator obtained a judgment which was subsequently affirmed by this court on Sutton's appeal.

Both suits were instituted and prosecuted to final judgment by W.C. Irwin of the Cole County Bar, as attorney for relator. Messrs. Rogers and Buffington of the Audrain County Bar were employed as local counsel to assist Irwin in the last trial of the ejectment suit.

The mandate of the court affirming the judgment in the ejectment suit was filed in the Circuit Court of Audrain County on the 8th day of April, 1927. Thereafter, on April 14, 1927, and during its regular March term, 1927, Sutton paid into that court the sum of $28,400, being the amount of the rents and profits which had been adjudged against him in the ejectment suit, with the accrued interest thereon. At the time of paying the money into court Sutton informed the court that relator's attorneys had not released their respective liens thereon. Thereupon the court made an order which provided, among other things, "that the clerk hold said sum of $28,400 until all the attorneys for Ben M. Anderson in the case of Anderson v. Sutton for rents and profits were paid and had satisfied said judgment, interest and costs." Following the making of the order Irwin filed a motion in which he asked the court to ascertain and determine the amount of the fee due him for his services and to declare in his favor a lien to the extent thereof upon the moneys paid into court in satisfaction of the judgment for rents and profits in the ejectment suit. In the motion he further set forth that his services in both cases had been rendered pursuant to a single contract of employment; that according to the terms of such contract relator had agreed to pay him "a contingent fee based upon a reasonable and customary percentage of the amount recovered;" that the money and property recovered in the ejectment suit were of the aggregate value of $71,300; and that on a contingent basis one-third thereof was a reasonable fee for his services.

Appearing for that purpose only, relator moved to strike Irwin's motion from the files, on the ground, among others, that the court was without jurisdiction to hear and determine the matters and things referred to therein. Relator's motion was by the court overruled, and he thereupon applied to this court for a writ of prohibition. Respondent judge in his return avers "that, unless enjoined and restrained from so doing, he will in due time proceed to hear and determine the questions presented by the petition of the said Irwin as to the amount, if any, of the lien which the said Irwin has against the funds so impounded," etc.

As entitling him to the writ applied for, relator says:

"The respondent judge is without jurisdiction to determine the matters in controversy between relator and Irwin as presented under Irwin's motion, for the following reasons:

"(1) Such a proceeding would deprive relator of his right to a trial of the issues here involved by a jury, to-wit: an action upon an alleged contract, express or implied: and (2) such proceeding is summary in its nature: a total departure from the established and recognized methods of procedure for the enforcement of alleged civil rights: and a deprivation of the property of relator without due process of law contrary to Section 30, Article II, of Constitution of Missouri."

This presents the questions for consideration.

I. Section 690. Revised Statutes 1919, provides:

"The compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the services of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client's favor, and the proceeds thereof in whosesoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment."

The statute in giving an attorney a lien on his client's cause of action creates a right that did not exist at common law, but though creating a new right it fails to provide a...