State v. Shain

• Decision Date: 14 June 1939
• Docket Number: No. 36392.,No. 36396.,36392.,36396.
• Citation: 130 S.W.2d 491
• Parties: STATE ex rel. MASSMAN CONST. CO. v. SHAIN et al., Judges. STATE ex rel. HENDERSON v. SAME.
• Court: Missouri Supreme Court

130 S.W.2d 491

STATE ex rel. MASSMAN CONST. CO. v. SHAIN et al., Judges.

STATE ex rel. HENDERSON v. SAME.

No. 36392.

No. 36396.

Supreme Court of Missouri, Division No. 1.

June 14, 1939.

Motion for Rehearing Overruled July 7, 1939.

Certiorari proceedings by the State of Missouri, at the relation of the Massman Construction Company, and at the relation of Mitchel J. Henderson, against Hopkins B. Shain and others, Judges of the Kansas City Court of Appeals, to quash the opinion by the Kansas City Court of Appeals in Nelson v. Massman Construction Company et al., 120 S.W.2d 77.

Opinion quashed in part in the proceeding brought by the Massman Contruction Company and the writ in the Henderson case quashed.

Martin J. O'Donnell, of Kansas City, for relators.

W. M. Raines, of Kansas City, for respondents and Thos. E. Deacy.

BRADLEY, Commissioner.

These causes are in certiorari to quash the opinion by the Kansas City Court of Appeals in Nelson v. Massman Construction Company et al., 120 S.W.2d 77. They were separately commenced and separately briefed, but were consolidated and argued together. The facts, as they appear in the opinion and by which we are bound, are, in many respects, common to both causes. It appears in the opinion sought to be quashed that Thomas E. Nelson brought suit against the Massman Construction Company and recovered a judgment for $5500. See Nelson v. Massman Construction Company, 231 Mo.App. 1, 91 S.W.2d 623. The law firm of Jacobs & Henderson (Floyd E. Jacobs and Mitchel J. Henderson) had a contract with Nelson to prosecute the suit against the Massman Construction Company by which contract the firm was to receive for services 50% of the net amount recovered. Thomas E. Deacy, an attorney, but not a member of the firm of Jacobs & Henderson, "had arrangements with said law firm whereby he, according to his testimony, was to receive 25 per cent. of the fee" in the Nelson case . When the judgment was paid, November 13, 1936, it amounted to $6,437.55, and this amount was paid by the Massman Construction Company to the clerk of the circuit court. The payment was made by a trust company treasurer's check made payable to the clerk, who endorsed the check without recourse and delivered it to Nelson. Thereupon Nelson receipted the clerk, satisfied the record of the judgment, and delivered the check to Jacobs, who cashed it, paid some expenses incurred in the Nelson case, retained $3,000 as the attorney's fee in the case, and turned the balance over to Nelson. About 10 days before these transactions, the clerk, Massman Construction Company and its attorney were given written notice by Henderson and Deacy that they claimed to have an interest in and a lien on the Nelson judgment. When the clerk received such notice there was placed, by a deputy clerk, on the margin of the record of the judgment this pencil note: "Do not allow this judgment to be satisfied. Henderson and Deacy file attorney lien on judgment. See files."

Henderson and Deacy, about 20 minutes before the payment of the amount of the judgment to the clerk, etc., received notice from the office of the Massman Construction Company's attorney that the Nelson judgment would be paid to the clerk at 11:30 a. m. that day. Deacy got to the clerk's office before all the transactions pertaining to the payment, etc., were completed, but was not able to do anything about it. Henderson and Deacy then went into the circuit court and filed separate motions in the Nelson case to set aside satisfaction of the judgment, and to secure judgments against the Massman Construction Company for their fees. The motions were on the theory that Henderson and Deacy, separately, had an attorney's lien on the judgment. On a hearing the trial court sustained these motions and set aside satisfaction of the Nelson judgment and entered separate judgments in favor of Henderson and Deacy. The Henderson judgment was: "Now, therefore, it is by the court considered, ordered and adjudged that the release and satisfaction of the judgment heretofore entered in this cause (the Nelson case) on the 10th day of January, 1934, made by the plaintiff (Nelson) on November 13, 1936, be and is hereby set aside and that execution issue upon said judgment in favor of the said Mitchel J. Henderson in the sum of eleven hundred and twenty-five ($1,125.00) dollars (one half of the fee, under the contract, based on the judgment of $5,500), same being the amount of the attorney's lien held by the said Mitchel J. Henderson against said judgment, and that said Mitchel J. Henderson have and recover of and from the Massman Construction Company, a corporation, defendant herein, the sum of eleven hundred and twenty-five ($1,125.00) dollars, together with the costs of this proceeding."

The judgment on the Deacy motion was about the same in form and the amount was $750, being 25% of the amount of the fee retained by Jacobs.

The Massman Construction Company appealed to the Kansas City Court of Appeals, and the court of appeals reversed the judgment of the trial court in favor of Henderson, but affirmed as to Deacy. These certiorari proceedings followed.

We shall first consider what we may term the Deacy case. It appears from respondents' opinion that Deacy took an active part in the trial of the Nelson case in the circuit court and argued the case the first time it was up in the court of appeals. The court of appeals at first handed down an opinion reversing the judgment and remanding the cause. Thereupon and thereafter Jacobs, at the direction of Nelson, looked after the case. Motion for a rehearing was filed and sustained; the case was reargued, and the judgment was affirmed. Certiorari was denied by this court, and also by the Supreme Court of the United States. Massman Construction Company v. Nelson, 299 U.S. 569, 57 S.Ct. 32, 81 L.Ed. 419.

As to what was done on behalf of Henderson and Deacy immediately upon receipt of the notice that the Nelson judgment would be paid to the clerk, Deacy testified: "I immediately called Mr. Burns, the circuit clerk, and I told him that this notice had been served upon us. I asked him what he was going to do in the event the money was paid into his hands. He stated to me that in the event the money was paid into his hands he was going to pay the money over to the plaintiff (Nelson) and that he would pay the money over to the plaintiff and not require any release or any signature on the part of any of the attorneys in the case. I got down to the court house as soon as I could, and as I walked into the circuit clerk's office, Mr. Jacobs and Mr. Nelson were there present and had already received the money from the hands of Mr. Burns, the circuit clerk. Wait, a minute. I am slightly incorrect there. The money had been paid into the hands of Mr. Burns, the circuit clerk, and Mr. Burns told me that he was going to immediately pay the money out to Mr. Nelson. I asked him to wait until I could have an opportunity of seeing Your Honor. In the meantime I had prepared, in the few moments which I had, a motion to impound the money, and brought that down here and attempted to contact Your Honor, but Your Honor was out, or busy, or unavailable. And I went on back downstairs, and the money had then been paid out by the circuit clerk to the plaintiff in the case."

Concerning the payment to the clerk, Jacobs testified that the day before such payment, he found out that the Massman Construction Company intended to pay the amount of the judgment to the clerk; that he went to see the clerk and told him "definitely that this money belonged to Nelson and that I was his only attorney with my present associates (the firm of Jacobs & Henderson was dissolved April 1, 1935); and that the money was due him (Nelson). * * * I told Mr. Burns (the clerk) who the money belonged to, and told him we were going to insist on payment to us." Jacobs also testified that Deacy was to receive 20%, instead of 25% as Deacy claimed, "in the cases (of Jacobs & Henderson) wherein he (Deacy) took an active part." Henderson did not testify.

Much space in relator's brief (in the Deacy case) is given to the merits. What was said in State ex rel. Public Service Commission v. Shain et al., 342 Mo. 867, 119 S.W.2d 220, loc.cit. 222, is applicable here and we quote: "`In proceedings of this kind [certiorari], we are concerned only with the question of conflict, and we look only to the opinion of the Court of Appeals for the facts, as has been sufficiently enunciated heretofore.' * * * Contentions not decided by the court of appeals cannot be made the basis of a ruling quashing its record on certiorari on the grounds that the opinion is in conflict with decisions of this court." Relator cites and quotes from cases by the courts of appeals. Conflict with decisions by the courts of appeals will not support certiorari. State ex rel. Brotherhood of Locomotive Firemen and Enginemen v. Shain et al., Mo.Sup. 123 S.W.2d 1, loc.cit. 6, and cases there cited.

Assignments of conflict are not very clear, but we may say that conflict is assigned (1) on the ruling, as relator construes, that Deacy was entitled to have applied to his case "the most favorable inference of all the credible testimony in the case"; (2) on the ruling that the payment of the $3000 to Jacobs did not discharge relator from liability to Deacy; (3) on the ruling that the payment of the $6,437.55 to the clerk of the court did not place the money in custodia legis; and (4) on the ruling to the effect that Deacy, in his motion to set aside, etc., alleged a specific contract and was permitted to recover on an implied contract. In other words, one cause of action was alleged and recovery was had on an entirely different theory.

That part of the opinion pertinent to the first assignment of conflict reads [120 S.W.2d 77, loc.cit. 90]: "In our statement of the case we have based same upon evidence most favorable to the movant [Deacy]. There is evidence...