Taylor v. Perkins
| Decision Date | 02 November 1914 |
| Citation | 170 S.W. 409,183 Mo.App. 204 |
| Parties | JOHN D. TAYLOR, Respondent, v. HARVEY W. PERKINS, C. W. PRINCE, Interpleader, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.
AFFIRMED.
Judgment affirmed.
C. W Prince pro se. Roy McKittrick and T. A. Witten for appellant.
L. N Dempsey and J. A. Collet for respondent.
Interpleader, an attorney at law, had a written contract with defendant, as administrator of his brother's estate, whereby he was to prosecute an action for damages against a certain railway company for the death of his brother. By that contract he was to receive thirty-five per cent of whatever sum was received whether by judgment or compromise. The case was thrown back and forth between the Federal and State courts in Jackson county. At the time it was last in the Federal court defendant directed plaintiff to dismiss it and he failed to do so. Whereupon defendant himself dismissed it and a new action was brought in the State court in Chariton county by other attorneys which resulted in a judgment for $ 6000 damages. Defendant and the railway company compromised this judgment for $ 2800.
The railway company had been notified of plaintiff's contract for thirty-five per cent and desired protection from any lien claim he might make. It was finally agreed that $ 980 should be deposited with plaintiff, and he would institute proceedings requiring Prince and Perkins to interplead. They did so and, after a trial by jury, a judgment was rendered against Prince's claim. This was appealed to this court where the judgment was reversed and the cause remanded, on the ground that it was a case in equity which should be tried by the court without a jury. The case is reported in 171 Mo.App. 246, where will be found a full history of the case and the contentions and theories of the respective parties. By reference to that report it will be seen that questions to be determined on a retrial were whether Prince had a contract, void for champerty, and whether he had performed his duty as defendant's lawyer.
At the second trial judgment was again against Prince's claim and he has again appealed. One question to determine is whether as a part of his contract whereby he was to receive the aforementioned per cent he agreed to pay the costs and thereby rendered the agreement void for champerty. Prince testified that he did not make that agreement and Perkins that he did. There are many convincing circumstances that Perkins' memory of the matter is correct. He had been an old acquaintance of Mr. Dempsey, an attorney at law--had known him in Chariton county and in Kansas City after his removal there. On the death of his brother he went to Dempsey and employed him in getting out administration papers and in an endeavor to settle the damages with the railway company for his brother's death. The railway company refused to settle and a suit was necessary. Perkins wanted Dempsey to agree to pay the costs in case of adverse results and he refused. Then Perkins and Prince came together (what caused or led to the selection of Prince need not be considered) and Perkins stated his reason for leaving Dempsey, and he testified that Prince then agreed to pay the costs. Afterwards, Prince and Perkins began to show dissatisfaction with each other, whereupon the latter suggested that he would employ Dempsey to assist and the former consented. Perkins and Dempsey thought the case, then pending in the Federal court, should be dismissed and brought in the State court in Chariton county where, on account of neither of the parties living there, it seems the Federal court could not lay hands on the case. Prince was finally directed by Perkins to dismiss in the Federal...
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