State v. Shelton

Decision Date28 March 1913
Citation156 S.W. 955,249 Mo. 660
PartiesSTATE ex rel. DUTCHER v. SHELTON, Judge.
CourtMissouri Supreme Court

Graves and Bond, JJ., dissenting.

In Banc. Prohibition by the State, on the relation of Marie Dutcher, against Nat. M. Shelton, circuit judge of Adair county. Granted.

This is a proceeding in prohibition, instituted in this court by the relator against Hon. Nat. M. Shelton, judge of the circuit court of Adair county, to prevent him from further proceeding with the trial and determination of the case of Campbell & Ellison, a copartnership, engaged in the practice of law at Kirksville, Adair county, Mo., plaintiffs, against one F. M. Harrington, an attorney, at the same place, and the relator herein, Marie Dutcher, the defendants therein.

As the facts are practically undisputed and are stated in the petition for the writ, and the return thereto, therefore, the briefest and clearest manner to state the case will be to copy the material parts of the pleadings, which will not only state the issues, but the facts of the case as well.

The petition filed herein, upon which our order against Judge Shelton to show cause, was issued, was as follows (the formal parts of all pleadings will be omitted without further mention):

"Now this day comes Marie Dutcher before the Supreme Court of the state of Missouri, and shows to the court: That Nat. M. Shelton is judge of the circuit court of Adair county, Mo. That relator, Marie Dutcher, is a resident of the city of St. Louis, state of Missouri. That M. D. Campbell and S. H. Ellison are residents of the county of Adair, state of Missouri, and are engaged in the practice of law in said county under the firm name of Campbell & Ellison. That F. M. Harrington is also a resident of the county of Adair, state of Missouri, and is engaged in the practice of law in said county and state. That on the ____ day of ____, 1907, said relator, Marie Dutcher, obtained a judgment in her favor against the Wabash Railroad in the circuit court of Adair county, Mo., in the sum of ten thousand dollars ($10,000). That said railroad company prosecuted an appeal in said cause to the Supreme Court of Missouri, and the said judgment of the circuit court of Adair county was by the Supreme Court of Missouri on the ____ day of ____ affirmed.

"Said relator further shows to the court: That the said firm of Campbell & Ellison and F. M. Harrington were her attorneys for the prosecution of said claim against the Wabash Railroad and represented her in the prosecution of said claim both in the circuit court of Adair county and before this court. That after said judgment in favor of the said relator was affirmed by this court as aforesaid there arose a dispute between the said relator and the said firm of Campbell & Ellison and F. M. Harrington, her aforesaid attorneys, as to what compensation said attorneys were entitled to by reason of their said employment as attorneys for the said relator. It was claimed by the said relator that said attorneys were together entitled to one-third of said judgment and accrued interest on the same, which said judgment and interest at the time it was paid amounted to a large sum of money, to wit, the sum of thirteen thousand dollars ($13,000), and that said attorneys were obligated to receive said one-third in full payment of all fees to themselves and expenses incurred by them. That it was then and there claimed by said attorneys that the said relator was not only obligated to pay them for their said employment one-third of the said judgment, but it was further claimed by said attorneys that they had employed additional counsel to aid them in the prosecuting of said cause before the Supreme Court, and that the services of such additional counsel were worth the sum of two thousand dollars ($2,000), and that they, the said Campbell & Ellison, and F. M. Harrington had obligated themselves to pay the sum of two thousand dollars ($2,000) to said additional counsel, and that said relator was by reason of the premises and of her alleged agreement with said Campbell & Ellison and the said Harrington obligated to pay to her said attorneys not only the sum of one-third of the said judgment, but also two thousand dollars ($2,000) for fees for additional counsel as aforesaid; and thereupon, in partial settlement of said dispute, it was agreed between the said Campbell & Ellison and the said F. M. Harrington, as parties of the first part, and said relator as party of the second part, that the amount of said judgment and the accrued interest on the same might be distributed as follows: That two-thirds might be paid to said relator and that one-third of the same should be paid to the said F. M. Harrington and Campbell & Ellison, and it was further agreed that the distribution of said money as aforesaid should not be taken as any accord and satisfaction between the parties, but that the said F. M. Harrington and Campbell & Ellison reserved the right to sue the said relator and attempt to recover from her the said two thousand dollars ($2,000), which it was claimed they were obligated to pay as aforesaid as fees for additional counsel, and said agreement and reservation to F. M. Harrington and Campbell & Ellison of said right to sue was in writing and is hereunto annexed and shown to the court as Exhibit A. Said relator further says that upon the signing of said agreement two-thirds of the amount of said judgment was paid to said relator and one-third thereof to said Campbell & Ellison and F. M. Harrington.

"Said relator further says that thereafter, to wit, on the ____ day of June, 1912, the said Campbell & Ellison instituted suit in the circuit court of Adair county, Mo., against the relator, Marie Dutcher, and the said F. M. Harrington as joint defendants. The petition filed in said suit is as follows, to wit: `Plaintiffs state they are, and at all the times herein mentioned, were a copartnership firm composed of M. D. Campbell and S. H. Ellison. Plaintiffs state that on the ____ day of ____, 1907, the defendant, Marie Dutcher, obtained a judgment in her favor and against the Wabash Railroad Company in the circuit court of Adair county, Mo., for the sum of ten thousand ($10,000) dollars and cost of suit; that said railroad company prosecuted an appeal in said cause to the Supreme Court of Missouri; that on the ____ day of ____, 1910, said cause was by Division No. 1 of said Supreme Court of Missouri reversed and judgment entered for the defendant; that thereafter said cause was transferred to the Supreme Court of Missouri in banc, where upon a hearing the said judgment of said circuit court was on the ____ day of ____, 1912, in all things affirmed. Plaintiffs further state that after the decision adverse to her in said Division No. 1 of said Supreme Court these defendants authorized plaintiffs to employ other and additional attorneys to represent said Marie Dutcher in said Supreme Court and authorized and directed, and requested that plaintiffs employ and offer to pay them the sum of two thousand ($2,000) dollars conditioned upon said judgment of said circuit court being affirmed and said judgment being collected; that plaintiffs did at the instance and request of said defendants as aforesaid, and after said adverse decision in said Division No. 1 employ other counsel and obligate themselves to pay the sum of two thousand ($2,000) dollars conditioned as aforesaid; that plaintiffs and said additional counsel in said cause incurred an expense in attending the hearing in said Supreme Court and in printing briefs for said court in the sum of about four hundred ($400) dollars, no part of which has ever been paid by said Marie Dutcher; that said additional counsel so employed as aforesaid rendered valuable assistance on behalf of said Marie Dutcher in said cause in said Supreme Court, and said services were of the reasonable value of two thousand ($2,000) dollars; that the same are now due and unpaid. And the said additional counsel has assigned said claims for said services to plaintiffs. Wherefore, plaintiffs pray judgment against these defendants for the sum of twenty-four hundred ($2,400) dollars, with interest at the rate of 6 per cent. from this date, and for costs of suit. Campbell & Ellison, Plaintiffs.'

"Relator further states that thereafter, on, to wit, the 4th day of June, 1912, a summons was issued out of the circuit court of Adair county directed to the sheriff of the city of St. Louis, state of Missouri, commanding him to summon relator, if she be found in said city, to appear before the circuit court of Adair county, Mo., on the first day of the...

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