State v. Moore

• Decision Date: 04 August 1949
• Docket Number: 30694.
• Citation: 208 P.2d 1207,34 Wn.2d 351
• Parties: STATE v. MOORE et al.
• Court: Washington Supreme Court

208 P.2d 1207

34 Wn.2d 351

STATE v. MOORE et al.

No. 30694.

Supreme Court of Washington, En Banc.

August 4, 1949

Babe Moore, alias Barbara Ward, was charged with crime of maintaining a house of prostitution, and in accepting earnings of prostitutes. From a judgment for J. P. Tonkoff for attorneys fees, defendant appeals, and J. P. Tonkoff cross-appeals.

Affirmed.

SIMPSON J., dissenting

Appeal from Superior Court, Franklin County; George O. Beardsley judge.

Chavelle & Chavelle, Seattle, for appellant.

Tonkoff & Holst, Yakima, for respondent.

STEINERT Justice.

During the pendency of a criminal action, the defendant filed a motion, captioned in that cause, for an order allowing her to substitute in place of her attorney of record other attorneys whom she had latterly retained to represent her in the further progress of the action. Defendant's original attorney thereupon filed a petition, captioned in the same cause, for an order fixing and allowing the amount of fees due him for services theretofore rendered to defendant and requiring payment thereof by her Before allowance of the requested substitution. Upon a hearing of both applications the court made findings and conclusions determining and awarding to the petitioning attorney the amount of allowable fees and thereupon entered judgment against the defendant in that amount. Defendant appealed from each and every part of the judgment and all rulings adverse to her. The petitioning attorney cross-appealed from the judgment insofar as it failed to award him a greater amount. For convenience, we shall hereinafter refer to the defendant as appellant and to the attorney petitioner as respondent.

The facts pertinent to this controversy are as follows: Prior to March 8, 1948, appellant, Babe Moore, alias Barbara Ward, had been charged by information in Franklin county, Washington, with the crime of maintaining a house of prostitution in Pasco. The crime so charged constitutes a misdemeanor. The information was later amended to include an additional charge of accepting the earnings of prostitutes, which is a felony. About the same time, six other persons, inmates of appellant's establishment, were separately charged with the crime of practicing prostitution or that of being in a house of prostitution, each of these offenses constituting a misdemeanor. In connection with these criminal causes, a civil action was also instituted by the prosecuting attorney for Franklin county demanding abatement of appellant's premises as a declared nuisance.

Respondent, J. P. Tonkoff, is a practicing attorney at law, residing in Yakima, Washington. On or about March 8, 1948, respondent was employed by appellant to represent and defend her in the criminal and civil actions in which she and her property were directly involved and also to represent and defend the parties charged in the other six criminal cases, all pending in Franklin county, in which latter cases appellant was also indirectly concerned.

Respondent entered upon his employment and in course thereof made at least ten trips to Pasco. He first secured a reduction in the amounts of bail fixed for the various defendants, who were then in jail, and thereafter arranged for the posting of bail bonds whereby he procured their release from custody. He appeared in court on numerous occasions, arguing motions, demurrers, and other applications, he was able to secure a series of continuances and was successful in preventing the immediate padlocking of appellant's premises, and in securing an order allowing her to continue legitimate operation thereof for a specified time as a hotel or rooming house. He also spent considerable time preparing for the trial of the various cases.

Realizing the seriousness of the felony count in the information against appellant, respondent endeavored to effect a full settlement of the criminal charges in which she was directly involved. With this in mind, he interviewed the prosecuting attorney, suggesting that he would recommend to the appellant that she plead guilty to the charge of operating a house of prostitution, which is a misdemeanor, and pay the maximum fine of five hundred dollars, if the felony charge were dismissed. The prosecuting attorney indicated that he would be willing to recommend to the court such a disposition of the criminal case against appellant. Respondent had several conferences with appellant, urging her to accept his advice, ratify the offer, and conform to the proposed terms. Appellant, however, was unwilling to do this, and in consequence became much dissatisfied with respondent's services, and finally engaged Mr. Cornelius C. Chavelle, a practicing attorney residing in Seattle, to represent her in the pending litigation.

In the meantime, the criminal action against appellant and the abatement proceeding had been set for trial on May 28th. Appellant failed to appear, however, and respondent endeavored to have the cases continued, urging as his reason therefor the fact that Mr. Chavelle had been engaged to replace him as defense counsel in these proceedings. The court granted a continuance to June 7th as to the criminal action, but refused continuance of the abatement proceeding. Respondent thereupon endeavored to withdraw from the latter case, but the court would not permit him to do so. As a consequence, respondent was required to enter upon the trial of the abatement complaint without the presence of his client. Mr. Chavelle had not yet taken over the case, inasmuch as the matter of substitution of attorneys still remained to be effected. He did, however, endeavor by long distance telephone to procure a postponement of the abatement hearing, but was unsuccessful in his effort.

On June 7th the criminal charges against appellant came on for trial Before a jury which had been called for that purpose. Mr. Chavelle appeared, intending to represent appellant at the trial. It was necessary, first, however, to procure a substitution of attorneys. Mr. Chavelle filed his motion in that behalf, and, respondent having in the meantime filed his petition with reference to fees, both applications were heard by the trial court at the same time, upon the testimony of the two parties here involved. It was established by the evidence that appellant desired a substitution of attorneys, that Mr. Chavelle was present and ready to be substituted so as immediately to proceed with the trial of the criminal action, and that respondent was willing to withdraw from the case upon payment of his attorney's fee. With respect to his fee, respondent testified that in his opinion the value of the services rendered by him for appellant in all pending matters was $2,000, of which he had received $500, leaving a balance of $1,500 still owing, payment of which he was insisting upon as a condition precedent to the substitution of attorneys.

At the conclusion of the evidence, the judge announced that he would allow respondent a fee of $1,500, less a credit of $500 already paid, leaving a balance of $1,000. Thereupon the following occurred:

'Mr. Tonkoff: Is your client willing to pay that?

'Mr. Chavelle: She has no funds now. 'Mr. Tonkoff: I will prepare the judgment.

'The Court: The Court will direct her [appellant] to pay that Before the substitution is made.

'Mrs. Ward [appellant]: No, I can't pay it.

'The Court: On her statement that she is not in a position to do so, due to the fact that substitute counsel is prepared to go ahead with the trial, and the jury is here, I will enter judgment against her in your [respondent's] favor. On this basis the substitution will be permitted.' (Italics ours.)

From the facts formally found and entered, the court concluded that respondent should be awarded the sum of $1,500 for his services, subject to a credit of $500, and

'That the defendant [appellant] should be required to pay said sum of $1000.00 prior to the substitution of Chavelle & Chavelle as attorneys in lieu of Tonkoff & Holst, and particularly J. P. Tonkoff. That defendant having stated she could not pay Tonkoff & Holst Plaintiffs [respondent] are entitled to judgment of $1000.00.'

Upon the findings and conclusions thus made and entered, the court granted respondent judgment in the sum of $1,000, and both parties have appealed, as hereinBefore explained.

Appellant states categorically in her brief that she is not questioning the reasonableness of the attorney's fee allowed by the trial court, but is objecting solely to the procedure adopted and followed by that court and is questioning the authority of the court summarily to fix an attorney's fee. Accordingly, her assignments of error are only (1) that the trial court erred in summarily fixing the attorney's fee, and (2) that the court erred in entering a judgment for such fee.

We do not believe that, under the record herein, appellant is in a position to raise or urge the questions suggested by her assignments of error. The findings of fact, made and entered by the trial court, recite, in the introductory paragraph, that the matter Before the court came on for hearing on appellant's motion for substitution of attorneys. The court then made a specific finding that appellant

'has moved for a substitution of attorneys in the above captioned matter and that attorney's fees for said J. P. Tonkoff be fixed prior to the substitution of the firm of Chavelle & Chavelle.' (Italics ours.)

No error is assigned upon any of the trial court's findings of fact.

We have repeatedly held that where no error is assigned upon the findings of fact, this court will accept the findings as the established facts in the case. LeCocq Motors, Inc., v Whatcom County, 4 Wash.2d 601, 104 P.2d 475; Hansen v. Lindell, 14 Wash.2d 643, 129 P.2d 234...