Taylor v. St. Louis Transit Co.

• Decision Date: 19 October 1906
• Citation: Taylor v. St. Louis Transit Co., 198 Mo. 715, 97 S.W. 155 (Mo. 1906)
• Parties: TAYLOR et al. v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

97 S.W. 155

198 Mo. 715

TAYLOR et al. v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Division One

October 19, 1906

Appeal from St. Louis City Circuit Court.-- Hon. John A. Blevins Judge.

Affirmed.

Glendy B. Arnold for appellant;

Boyle & Priest and George W. Easley of counsel.

(1)Plaintiffs cannot recover under the 1st section of the Attorneys' Lien act, becaust it is neither alleged nor proved that the suits compromised by this defendant had been reduced to a verdict or judgment, as the lien given by that section is not perfected until the cause of action has been reduced to a verdict, report, decision or judgment.Smelker v. Railroad,81 N.W. 995;Swift v Register,97 Ga. 446;Rogers v. Furse,83 Ga 115;Brown v. Railroad,101 Ga. 80;O'Brien v. Railroad,50 N.Y.S. 159;Johnson v. McCurry,102 Ga. 471;Railroad v. Givens,13 Ky. L. R. 491;Herman v. Railroad,121 F. 184;Trigg v. Chambers,56 Ga. 279;Coleman v. Ryan,58 Ga. 132.Under the Georgia Code, sec. 2814, if a settlement be made between the parties and the attorney, still the attorney may prosecute the suit to final judgment for the purpose of fixing his lien against the judgment, and if in that suit the defendant prevails, the attorney's lien is extinguished.Brown v. Railroad,101 Ga. 80.If this were not true, the attorney might have a lien upon causes of action that never existed, and the defendant required to pay for something that could not have been recovered from him in the original suit.This would make the defendant liable to punishment for an attempt to purchase peace.The construction of the New York statute, from which ours is mainly adopted, is like the Georgia cases.O'Brien v. Railroad,50 N.Y.S. 159.The attorney must proceed with the original case and prosecute the original claim to final judgment before he can enforce the lien.Johnson v. McCurry,102 Ga. 471;Smelker v. Railroad(Wis.),81 N.W. 995;Railroad v. Givens,13 Ky. L. R. 491.It must be borne in mind that there is neither allegation nor proof that the settlement between plaintiff and defendant of the original suit was fraudulently made for the purpose of depriving the attorney of his fee.If such were the case, the court could doubtless refuse to allow the order of discontinuance or dismissal of plaintiff to be entered, but would permit the cause to proceed regularly, and the lien of the attorney enforced against such judgment as might be obtained therein.(2)Plaintiffs are not entitled to recover under the second section of the Attorneys' Lien act because that section of the act is unconstitutional.The plaintiff had no lien as an attorney at common law.Alexander v. Railroad,54 Mo.App. 66.The Constitution provides that "no bill . . . shall contain more than one subject, which shall be clearly expressed in its title."Constitution, art. 4, sec. 28; Cooley's Const. Lim. (3 Ed.), 141;St. Louis v. Tiefel,42 Mo. 590;Dorsey's Appeal, 72 Pa. St. 192;In re Green,14 Colo. 401;Brooks v. People,14 Colo. 413.(3) The lien should have been enforced against the sum of money in the hands of the original plaintiff.Such is the direct provision of the act, that the lien shall be enforced against the proceeds thereof in whosesoever hands they may come.This record shows that they were in the original plaintiff's hands, and the lien should be enforced against that fund.(4) The contract between plaintiffs and their clients is champertous and therefore void.It is a single contract and not three separate agreements to prosecute three separate causes of action.And while the written contract provides that their clients pay all costs of court yet Mr. Seneca N. Taylor admitted on the witness stand that he agreed to and did furnish the money for costs in the case of Irene Violet Aston.The contract is for a contingent fee."The common-law rule respecting champertous contracts is in force in this State."Duke v. Harper, 66 Mo. 51.A contract between attorney and client that the attorney is to receive as compensation for his services a portion of the property in controversy, and that he is to pay the costs (or any part thereof) of litigation, is champertous.Million v. Ohnsorg, 10 Mo.App. 432.

Seneca N. & S. C. Taylor for respondents.

(1) Under our statute, from the commencement of the action the attorney's lien attached upon the plaintiff's causes of action; and the institution of the suits was the only notice of such attorney's lien required to make the defendant liable for compromising in disregard of such attorney's lien and paying the entire agreed sum to plaintiffs.Laws 1901, p. 46;Young v. Renshaw,102 Mo.App. 182;Yonge v. Railroad,109 Mo.App. 235;New York Code Civ. Pro., sec. 66;Caster v. FerryCo., 55 N. Y. Civ. Pro. Rep. 145;Keeler v. Keeler,51 Hun 505;Bevins v. Albro,86 Hun 590;Quinlan v Birge,43 Hun 482;Fosterman v. Schulting,35 Hun 504;Galcano v. Whitenaek,30 N.Y.S. 415;Marvin v. Marvin,19 N.Y.S. 571;Vrooman v. Picking,54 N.Y.S. 389;Peri v. Railroad,152 N.Y. 526;Railroad v. Wells,104 Tenn. 711;Tompkins v. Railroad,110 Tenn. 157;Railroad v. Proctor,21 Ky. L. R. 447;Railroad v. Givens,13 Ky. L. R. 491;Railroad v. Thatcher,17 Kan. 100;Farry v. Davidson,44 Kan. 377;Winslow v. Railroad,71 Iowa 191;Larned v. City of Dubuque,86 Iowa 167;Parsons v. Hawley,92 Iowa 175;Walton v. Railroad,112 Iowa 566;Railroad v. Ackley,58 Ill.App. 572.(2) Mr. and Mrs. Aston, as plaintiffs, had power to dismiss their suits.They had power to compromise their causes of action for $ 2,250, the sum actually agreed upon between them and defendant.But they and defendant combined had no power to destroy the lien of the attorneys who instituted the suits both upon the causes of action and the agreed sum for the compromise.When by compromise they agreed that $ 2,250 was the amount the defendant should pay for a satisfaction of their causes and dismissal of the suits, the lien of Seneca N. and S. C. Taylor and Eugene Hale attached to that agreed sum to the extent of 25 per cent thereof, that being the agreed compensation the attorneys were to receive of the amount obtained by compromise or judgment upon the Astons' cause of action.Therefore, when defendant paid to the Astons the entire agreed sum, in disregard of the attorney's lien, it made itself liable to the attorneys in a civil action for 25 per cent of the amount agreed upon and paid as such compromise.Reason and authorities alike sustain these propositions.Laws 1901, p. 46, sec. 1;Yonge v. Railroad,109 Mo.App. 235;Young v. Renshaw,102 Mo.App. 182;Tompkins v. Railroad,110 Tenn. 157;Railroad v. Wells,104 Tenn. 706;Railroad v. Thatcher,17 Kan. 100;Farry v. Davidson,44 Kan. 377;Larned v. City of Dubuque,86 Iowa 167;Parsons v. Hawley,92 Iowa 175;Railroad v. Ackley,58 Ill.App. 572;Railroad v. Givens,13 Ky. 491;Railroad v. Proctor,21 Ky. 447;2 Clark & Skyles on Law of Agency, p. 1589;Peri v. Railroad,152 N.Y. 526.(3) Where a new right is created by statute, and a particular proceeding not theretofore existing to enforce the right is prescribed, the statutory remedy, if adequate, must be pursued.Railroad v. Railroad,149 Mo. 253;Markowitz v. Kansas City,125 Mo. 485;Hickman v. City of Kansas,120 Mo. 110;Pleasant Hill v. Dasher,120 Mo. 110;Clinton to use v. Henry County,115 Mo. 557;Baker v. Railroad,36 Mo. 543;Endlich on Interpretation of Statutes, sec. 154.(4)(a) Where a statute creates a new right, but provides no remedy for its enforcement, the courts will not allow the right to perish for want of a remedy, but will enforce such right in an appropriate action in the nature of a trespass on the case, which in Missouri is called a civil action.R. S. 1899, secs. 539, 592;Yonge v. Railroad,109 Mo.App. 249; Sedgwick, Stat. & Const. Law (2 Ed.), 75;Railroad v. Thatcher,17 Kan. 100;Farry v. Davidson,44 Kan. 377;Winslow v. Railroad,71 Iowa 191;Larned v. City of Dubuque,86 Iowa 197;Parsons v. Hawley,92 Iowa 175;Walton v. Railroad,112 Iowa 566;Railroad v. Ackley,58 Ill.App. 572;Tompkins v. Railroad,110 Tenn. 157.(b) Where a suit is brought upon a statutory cause of action, it is only necessary that the petition should state facts which bring the case within the provisions of the statute, without referring to it.Kennayde v. Railroad,45 Mo. 258;White v. Maxcy,64 Mo. 558;Reynolds v. Railroad,85 Mo. 94;Gurley v. Railroad,104 Mo. 211;Emerson v. Railroad,111 Mo. 161;Lore v. American Mfg. Co.,160 Mo. 621.(5) The Missouri statute creating a lien upon a plaintiff's cause of action is not unconstitutional.Young v. Renshaw,102 Mo.App. 182;Yonge v. Railroad,109 Mo.App. 235;New York Code Civ. Pro., sec. 66;Caster v. FerryCo., 5 N. Y. Civ. Pro. Rep. 145;Fosterman v. Schulting,35 Hun 504;Quinlan v. Birge,43 Hun 482;Keeler v. Keeler,51 Hun 505;Givens v. Albro,86 Hun 505;Peri v. Railroad,152 N.Y. 521;Railroad v. Wells,104 Tenn. 711;Tompkins v. Railroad,110 Tenn. 157;Railroad v. Givens,13 Ky. L. R. 491;Railroad v. Proctor,21 Ky. L. R. 447;Railroad v. Thatcher,17 Kan. 100;Farry v. Davidson,44 Kan. 377;Winslow v. Railroad,71 Iowa 191;Larned v. City of Dubuque,86 Iowa 167;Parsons v. Hawley,92 Iowa 175;Walton v. Railroad,112 Iowa 566.(6) The position of appellant that the title of the act does not sufficiently disclose its purpose and that it contains more than one subject is untenable.City of Hannibal v. County of Marion,69 Mo. 571;State ex rel. v. Ransom,73 Mo. 78;State ex rel. v. Shepard,74 Mo. 310;State v. Blackstone,115 Mo. 427;State ex rel. v. Slover,134 Mo. 16;Lynch v. Murphy,119 Mo. 170;Ewing v. Hoblitzelle,85 Mo. 71;State ex rel. v. Bronson,115 Mo. 376;State ex rel. v. Hegge,135 Mo. 112;State ex inf....