The State ex rel. Bradley v. Trimble

• Decision Date: 20 December 1926
• Docket Number: 27057
• Parties: The State ex rel. Nick M. Bradley and E. C. Littlefield, Interpleaders, v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

289 S.W. 922

316 Mo. 97

The State ex rel. Nick M. Bradley and E. C. Littlefield, Interpleaders, v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 27057

Supreme Court of Missouri

December 20, 1926

Writ quashed.

Nick M Bradley and E. C. Littlefield for relators.

(1) This court in this case must look to the opinion of the Court of Appeals and the pleadings, and written instruments referred to therein for the facts. State ex rel. Life Ins. Co. v. Allen, 282 S.W. 46. This court is permitted to examine any pleading or written instrument referred to and reference to any pleading or written instrument in the opinion of the Court of Appeals makes such pleading or written instrument as much a part of the opinion as if fully set forth therein. State ex rel. Kansas City v Ellison, 281 Mo. 667. (2) With reference to the question as to the employment of Littlefield by Robertson the opinion states that the evidence was flatly contradictory, and the Court of Appeals allows it to go at that. It is not otherwise referred to in the opinion. It would appear from the opinion and that is the record in this case, that the Court of Appeals considered that question immaterial. Appellants at the trial in the circuit court objected to the introduction of any evidence as to any employment of Littlefield by Robertson, for the reason that it was immaterial. In the first place, Littlefield held a written contract of employment by Smith, the plaintiff in the suit, at the time Robertson insists he employed Littlefield to prepare the petition. Littlefield at all times denied any employment by Robertson, and told Robertson at all times, as shown by the testimony of Robertson himself, that he had a written contract with Smith, and that he filed the suit under the authority of that written contract, and that he was not acting for Robertson. At no stage of the proceedings was there anything that could possibly lead Robertson to believe that Littlefield was attempting to act for him in the matter. The petition filed in the suit was signed by Littlefield and Bradley, as attorneys. Robertson states that he asked Littlefield why his name was not also signed to the petition, and that Littlefield told him he had a written contract with plaintiff, thus giving Robertson notice, early in September, 1923, that he was not acting for him, and yet he now asks this court to find that the Court of Appeals held that the lien which the statute gives to Littlefield, as the attorney for plaintiff, inured to his benefit. The Court of Appeals did not even discuss that question, and did not decide that question. It was immaterial whether Robertson attempted to employ Littlefield or not. Littlefield did not accept any employment, and did not at any time appear to act under any authority from Robertson, and did not at any time lead Robertson to think that he was representing him, or was acting under any authority delegated by Robertson. On the contrary, Littlefield acted at all times under the authority of the written contract, signed by Smith, and set out in full in the opinion. This was certainly notice to Robertson that Littlefield was not acting in his behalf, or pretending to represent him in any manner. (3) The only question in this case is the proper construction to be placed upon Sections 690 and 691, Revised Statutes 1919. This court is permitted to examine Robertson's interplea in this proceeding, because it is referred to in the opinion, and outlines the theory on which he sought to recover in the interpleader action. By reference to that interplea, this court will find that Robertson based his right to recover upon the fact that he was the first attorney consulted by the plaintiff, Smith, and the attorney who investigated the facts, and upon the further fact that he had the court enter his name upon the bar docket as attorney for plaintiff, and that any contract made between plaintiff and Littlefield, being subsequent to the date on which he was consulted, was void. This theory of respondent ignores entirely the provision in Section 691, limiting the lien of the attorney to the time when the notice is served upon the defendant. The opinion also ignores the limitation embodied in the said section, and holds that when notice is served upon defendant, it operates as a lien upon the cause of action. In this respect, the opinion is in conflict with the opinion of this court in Wait v. Railroad, 204 Mo. 491; Fisher v. Anderson, 101 Mo. 459.

R. M. Robertson and M. D. Aber for respondents.

(1) It is not the province of the Supreme Court to determine whether the Court of Appeals erred in its application of rules of law to the facts stated in its opinion, but only whether upon those facts it announced some conclusion of law contrary to the last previous ruling of the Supreme Court upon the same or similar facts. State ex rel. v. Reynolds, 289 Mo. 506; State ex rel. v. Allen, 294 Mo. 214. (2) There is no conflict between the decision of the Court of Appeals in this case and that rendered by this court in Wait v. Railroad, 204 Mo. 491. (3) There is no conflict between the decision of the Court of Appeals in this case and that rendered by the Supreme Court in Taylor v. Transit Co. 198 Mo. 715. (4) There is no conflict between the decision of the Court of Appeals in this case and that rendered by the Supreme Court in Fisher v. Anderson, 101 Mo. 459. (5) There is no conflict between the decision of the Court of Appeals in this case and that rendered by the Supreme Court in the cases of Lyons v. Corder, 253 Mo. 539; Borgess v. Vette, 142 Mo. 560; or Company v. Walsh, 108 Mo. 277. (6) There is no conflict between the decision of respondents in this case and that of this court in the cases of Pier v. Heinrichoffen, 52 Mo. 333; Wolf v. Harris, 267 Mo. 409.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

This is a proceeding by relators, who are practicing lawyers in Johnson County, Missouri, by certiorari, to quash the record of the Kansas City Court of Appeals in a case recently pending and determined in said court.

Their petition alleges that on September 6, 1923, they filed in the Circuit Court of Johnson County aforesaid a petition in an action for damages, signed by Nick M. Bradley and E. C. Littlefield, as attorneys for Joseph Smith, plaintiff, against Frank C. Nicholson et al., defendants; that service upon defendants was had, and the cause set down for hearing for the October term, 1923, of said court; that all the defendants answered at said term; that relators conducted all the proceedings, and made all appearances for the plaintiff in said cause, and finally obtained judgment against Frank C. Nicholson, one of the defendants, in the sum of five hundred dollars, on the 24th day of November, 1924. That on November 13, 1924, R. M. Robertson, a practicing lawyer of Johnson County aforesaid, served written notice upon Frank C. Nicholson, to the effect that he had been employed by said Joseph Smith, the plaintiff, and that he claimed a lien on the judgment; that on December 10, 1924, said Frank C. Nicholson filed in said cause a petition asking that said relators, R. M. Robertson and Joseph Smith, the plaintiff, be required to interplead for the proceeds of the judgment; that relators, and said Robertson, filed interpleas in said cause; that relators demurred to the interplea of Robertson, which was overruled, and the cause proceeded to a trial upon said interpleas of Robertson, Smith and relators; that the latter offered in evidence the original petition filed by them, and a written contract signed by plaintiff, authorizing them to file the suit and agreeing to allow them one-half of the amount recovered; that they offered evidence tending to show that they had conducted all the proceedings leading up to the judgment, at the request, and under the contract of plaintiff; that there was no conflict as to the above facts; that R. M. Robertson introduced evidence to the effect that he had been employed by plaintiff in May, 1923, to file said suit; that he did not file the suit himself, but employed relator, E. C. Littlefield, to prepare the petition and to send it to Warrensburg for filing; that Robertson, over the objection of relators, introduced in evidence his ledger, containing a memorandum of the contract between him and plaintiff Smith; that on the 1st day of the October term of said circuit court, he asked the circuit judge to enter his name on the bar docket as attorney for plaintiff; that the circuit court rendered judgment sustaining a lien in favor of R. M. Robertson for $ 250, and refused to sustain any lien in favor of relators; that the remaining $ 25 was awarded to attorneys for Frank C. Nicholson as their fees in the interplea action; that motions for a new trial and in arrest of judgment were filed, overruled and the case appealed to the Kansas City Court of Appeals, where the judgment was affirmed as shown by "Exhibit A;" that a motion for rehearing was filed in the Court of Appeals, overruled, and the writ of certiorari issued herein.

In order to avoid repetition, we will consider the questions presented by the record in the opinion.

Before coming to the merits of this controversy, we deem it expedient to dispose of some of the law questions presented by the record.

I. The Court of Appeals properly held that on the record before it, the case should be disposed of as an equitable proceeding, in which said court had the legal right to pass upon the weight of the evidence disclosed by the record. [Bush v. Kansas City Life Ins. Co., 214 S.W. 178, and cases cited.]

II. The Court of Appeals had jurisdiction over the subject-matter of the action and likewise over the parties connected therewith.

In State ex rel. v. Allen, 256 S.W. l....