Taylor v. St. Louis Merchants' Bridge Terminal Ry. Co.

• Decision Date: 27 November 1907
• Citation: 207 Mo. 495,105 S.W. 740
• Parties: TAYLOR v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.
• Court: Missouri Supreme Court

105 S.W. 740

207 Mo. 495

TAYLOR v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. COURTS — APPELLATE COURTS — JURISDICTION — CONSTITUTIONAL QUESTION.

Where, in an action to recover under the attorney's lien act (Laws 1901, p. 46 [Ann. St. 1906, § 4937-1]), defendant, by answer, challenged the constitutionality of the act, and the cause was tried on that question, as well as others, and after judgment for the attorney an appeal was granted to the St. Louis Court of Appeals, up to which time no steps had been taken to eliminate the constitutional question, the act of the circuit court in sending the case to the St. Louis Court of Appeals was erroneous on the face of the record, since, a constitutional question being involved, appellate jurisdiction was in the Supreme Court, and, on attention being called to the record, the St. Louis Court of Appeals properly transferred the case to the Supreme Court, and, jurisdiction being fixed by the record at the time of appeal, the fact that defendant undertook to waive the constitutional objection on motion to vacate the order of transfer did not take away the jurisdiction of the Supreme Court to determine the appeal.

2. ATTORNEY AND CLIENT — ATTORNEYS' LIENS — STATUTORY PROVISIONS — CONSTITUTIONALITY.

Laws 1901, p. 46, § 1 [Ann. St. 1906, § 4937-1], giving an attorney a lien on his client's cause of action from the commencement of the action, and declaring that the same cannot be affected by any settlement between the parties, and section 2 [§ 4937-2], providing that an attorney may contract with his client for a percentage of the proceeds of any settlement, and that on notice by the attorney served on defendant the contract shall operate as a lien and cannot be affected by any settlement between the parties, is constitutional.

3. SAME.

An attorney has the lien on his client's cause of action given by Laws 1901, p. 46, § 1 [Ann. St. 1906, § 4937-1], providing that an attorney shall have a lien on his client's cause of action from the commencement of the action, where settlement is made after suit brought, though he may not have given the notice to defendant prescribed by section 2 [§ 4937-2].

4. SAME — ENFORCEMENT OF LIEN — PLEADINGS.

A petition to recover on an attorney's lien stated all the facts necessary to constitute a cause of action under Laws 1901, p. 46, § 1 [Ann. St. 1906, § 4937-1], giving an attorney a lien on his client's cause of action from the commencement of the action, and further stated that there was given the notice prescribed by section 2, providing that on notice by an attorney of an agreement with his client for a certain percentage of the proceeds of any settlement of his client's claim, served on defendant, such agreement shall operate as a lien. The notice pleaded was given after suit was begun and before settlement. Held that, though the attorney had pleaded the notice required by section 2 [§ 4937-2], his suit was not defeated if there was no valid service of the notice, but that, since no notice was required after suit was brought, the allegation of notice might be rejected as surplusage, and the suit sustained under section 1.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by A. R. Taylor against the St. Louis Merchants' Bridge Terminal Railway Company to recover under the attorney's lien act (Laws 1901, p. 46 [Ann. St. 1906, § 4937-1]). Judgment for plaintiff, and defendant appealed to the St. Louis Court of Appeals, by which court the cause was transferred to the Supreme Court. Affirmed.

J. E. McKeighan and Wm. R. Gentry, for appellant. Gerald Griffin and Howard Taylor, for respondent.

GRAVES, J.

Plaintiff, A. R. Taylor, is, and for many years has been, an attorney at law in the state of Missouri, residing in the city of St. Louis. Defendant is a Missouri railway corporation. One Oscar F. Randolph had a cause of action against the defendant in this case for personal injuries. Randolph employed Taylor as his attorney, by a written contract in these words: "This article of agreement made and entered into this May 31, 1901, between Oscar F. Randolph, party of the first part, and A. R. Taylor, party of the second part, witnesseth: That the said party of the first part has this day and by these presents employed the party of the second part to institute and prosecute an action for damages on account of personal injuries against the St. Louis Merchants' Bridge Terminal Railway Company. For his services in so instituting and prosecuting said action, the party of the second part is to receive one-third of whatever sum shall be realized out of said claim. And it is agreed that no compromise shall be made of said claim without the consent of both parties hereto." Under this contract, and in June, 1901, plaintiff herein brought suit for Randolph against the defendant herein. Defendant filed answer, and this plaintiff, for Randolph, filed reply. In fact, he prepared the case for trial and appeared in it throughout as attorney for Randolph, making with counsel for defendant agreements and stipulations for continuances and change of venue. The venue of the Randolph case was changed from the city of St. Louis, the place of its institution, to Jefferson county. On January 25, 1902, plaintiff, Taylor, served notice in form and manner as follows:

"Oscar Randolph v. St. Louis Merchants' Bridge Terminal Railway Company. To the Above-Named Defendant, John H. Overall, Attorney: You are hereby notified that the undersigned has a contract with Oscar Randolph, the plaintiff in the above-styled case, by which the undersigned is to receive as compensation for his services as attorney in prosecuting said claim one-third of whatever sum shall be realized out of said claim. You are further notified that the undersigned will assert his statutory lien on the cause of action set forth in said action.

"Dated this 25th day of January, 1902.

                  "[Signed]               A. R. Taylor
                

"Copy received January 25, 1902.

"J. H. Overall, Attorney for Defendant."

About May 12, 1902, over the protests of plaintiff in this action, the defendant settled the case with Randolph, paying him the sum of $2,500, and taking his release from all liability. Counsel for defendant had advised Mr. Taylor that the case would be settled, and requested his presence. Mr. Taylor was present and protested, because Randolph would not agree that he (Taylor) should have more than $250 out of the $2,500. Taylor objected to the settlement and demanded his one-third of the $2,500. Over the protests of Taylor, the $2,500 was paid Randolph, and this action is to recover one-third of the $2,500, with interest thereon. The plaintiff had...