United Rys. Co. of St. Louis v. O'Connor.

• Decision Date: 29 November 1910
• Citation: 132 S.W. 262,153 Mo. App. 128
• Parties: UNITED RYS. CO. OF ST. LOUIS v. O'CONNOR et al.
• Court: Missouri Court of Appeals

132 S.W. 262

153 Mo. App. 128

UNITED RYS. CO. OF ST. LOUIS v. O'CONNOR et al.

St. Louis Court of Appeals. Missouri.

November 29, 1910.

1. INTERPLEADER (§ 1) — RIGHT TO INTERPLEAD —GROUNDS.

The purpose of a bill of interpleader is to protect the indifferent holder of a fund or a bailee from the annoyance and expense of separate actions to recover what he is willing to pay, and the bill lies when the same fund or debt, or thing, is claimed by hostile parties through adverse titles derived through a common source, provided the interpleader is a mere stakeholder with no interest in the subject-matter, and without having incurred any liability to either of the claimants personally.

2. INTERPLEADER (§ 8) — RIGHT TO INTERPLEAD —GROUNDS.

Where it appears from a bill of interpleader that one defendant has a valid right to the fund, and it appears affirmatively that the other defendant is without any right, no ground for the bill exists.

3. ATTORNEY AND CLIENT (§ 189)—LIEN OF ATTORNEY—STATUTES.

Under Rev. St. 1909, §§ 964, 965, giving an attorney appearing for a party, a lien on the party's cause of action, and authorizing an attorney to contract with his client for legal services in consideration of a percentage of the proceeds, and to give notice to defendant of the agreement and thereby acquire a lien for the amount agreed on, where a plaintiff made a settlement without the consent of his attorney, who had given the required notice, and agreed to pay his attorney out of the money received, the settlement liquidated the cause of action and fixed the attorney's right of recovery against defendant

in the action at the percentage stipulated in the contract of employment.

4. PLEADING (§ 214)—ADMISSIONS BY DEMURRER.

The court, on a demurrer to a bill of interpleader, must take the averments thereof as true.

5. ATTORNEY AND CLIENT (§ 75)—DISCHARGE OF ATTORNEY—RIGHT OF CLIENT.

A client may, for sufficient cause, discharge his counsel, notwithstanding Rev. St. 1909, §§ 964, 965, giving an attorney a lien on his client's cause of action, but, in the absence of an actual discharge for good cause, the attorney may insist on his lien.

6. INTERPLEADER (§ 8)—GROUNDS OF RELIEF —DOUBT AS TO RIGHTS OF CLAIMANTS.

An attorney instituted a suit for a client for damages under a contract fixing his compensation at one-half of the amount of recovery, and served notice on defendant, as required by Rev. St. 1909, § 965. The client attempted to discharge the attorney but did not actually discharge him, and there was no cause for a discharge. The client employed other attorneys, but it did not appear that they were employed to prosecute the action. The client settled the action with defendant without the consent of the attorney. Held, that defendant could not maintain a bill of interpleader to determine his liability to the several attorneys, because it was liable to the attorney instituting the action.

7. INTERPLEADER (§ 23) — BILL OF INTERPLEADER —REQUISITES.

A bill of interpleader should show not only the willingness of plaintiff as stakeholder, to render the debt or duty to the rightful claimant, but it should show that he is ignorant or in doubt which is the rightful claimant, and that he is in danger by reason of such doubt from their conflicting demands, and where it shows on its face that one of the claimants is certainly entitled to the fund as against the other claimant, it is insufficient on demurrer.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Bill of interpleader by the United Railways Company of St. Louis against John J. O'Connor, and against John E. Bishop and others. From a judgment sustaining a demurrer to the petition interposed by defendant John J. O'Connor, plaintiff appeals. Affirmed.

The court declared the petition for defendants to interplead insufficient on the demurrer of defendant John J. O'Connor, and plaintiff prosecutes an appeal from that judgment. Omitting formal matter and signatures, the petition is as follows:

"Comes now the plaintiff in the above-entitled cause and states that it is a corporation duly organized and existing under and by virtue of the laws of the state of Missouri; that defendants, John E. Bishop and Thomas A. Cobbs, are copartners doing business under the firm name and style of Bishop & Cobbs; that all of the defendants above named are duly licensed and practising attorneys in the city of St. Louis and state of Missouri.

"Plaintiff states that one Mary Harrigan, instituted a suit against this plaintiff in the circuit court of the city of St. Louis, Mo., on account of certain alleged injuries which she claimed to have sustained through the alleged negligence of this plaintiff, and that said suit was numbered 44,406, and was assigned to division No. 3 of said circuit court of the city of St. Louis; that said Mary Harrigan employed the defendant John J. O'Connor to institute said suit for her and that said O'Connor drew the petition in said suit and instituted the same in this court, attended the taking of depositions therein and performed various other services. That in consideration of O'Connor's services said Mary Harrigan agreed to pay him 50 per cent. of the amount she recovered from this plaintiff.

"Plaintiff further states that said O'Connor served it with a notice of his attorney's lien in accordance with the contract theretofore entered into between said O'Connor and said Mary Harrigan.

"Plaintiff further states that thereafter said Mary Harrigan attempted to discharge said O'Connor, but said O'Connor notified this plaintiff that the services he rendered said Mary Harrigan had not been paid for, and that he still retained his lien on the alleged cause of action of said Mary Harrigan.

"Plaintiff further states, upon information and belief, that said Mary Harrigan also entered into an agreement with the defendants Albert E. Hausmann, John E. Bishop, and Thomas A. Cobbs, whereby said Mary Harrigan agreed to pay said Bishop & Cobbs and Hausmann 50 per cent. of the amount recovered by her, and that said Bishop & Cobbs and Hausmann claim a lien on the alleged cause of action of said Mary Harrigan.

"Plaintiff further states that said Mary Harrigan afterwards fully and forever released, acquitted, and discharged this plaintiff on account of the alleged matters and things set forth in her petition in said cause, in consideration of which plaintiff paid her the sum of five hundred ($500) dollars.

"Plaintiff further states that the defendants John E. Bishop, Thomas A. Cobbs, and Albert E. Hausmann have rendered certain legal services to the said Mary Harrigan, but the exact nature of which plaintiff does not know.

"Plaintiff further states that said John J. O'Connor and the said Thomas A. Cobbs and John E. Bishop and Albert E. Hausmann have each and all been asserting and claiming a lien on the proceeds arising out of the settlement of the alleged cause of action of said Mary Harrigan, which said claims of John E. Bishop, Thomas A. Cobbs, and Albert E. Hausmann are conflicting with the said claim of John J. O'Connor, and that it cannot, without hazard, determine to which of the claimants it should pay the fund.

"Plaintiff further states that it has no interest whatever in the claims of said Bishop & Cobbs and Hausmann and said John J. O'Connor, and is ready and willing at all times to pay a sum equal to 50 per cent. of said sum of $500, which was paid to the said Mary Harrigan in settlement of her claim, to wit, the sum of two hundred and fifty ($250) dollars into this court and be released from the claims of said Bishop & Cobbs and Hausmann and the said John J. O'Connor.

"Plaintiff further states that the claims of said Bishop & Cobbs and Hausmann, and said John J. O'Connor, are identical and are for the same fund, and are not independent.

"Plaintiff further states that it is not making any claim to the sum to which said lien attaches and that it is not acting in collusion with or favoring said Bishop & Cobbs and Hausmann or the said John J. O'Connor, or either or any of them.

"Plaintiff further states that it is unacquainted with the actual facts involved in the said controversy between said Bishop & Cobbs and Hausmann and said John J. O'Connor, and that it is being sued by each and all of them; that said Bishop & Cobbs and Hausmann have instituted a suit against this plaintiff on account of the matters and things hereinbefore set out, which suit is now pending in division No. 1 of the circuit court of the city of St. Louis, Mo.

"Plaintiff further states that the said defendant, John J. O'Connor, has instituted a suit against this plaintiff on account of the matters and things hereinbefore set out, which suit is now pending before George P. Reichmann, justice of the peace within and for the Seventh district of the city of St. Louis, Missouri, which court is inferior to the jurisdiction of this court. That neither of said suits have been reduced to a judgment.

"Plaintiff further states that it has not incurred any independent liability to any of the defendants herein, on account of the matters and things herein set out.

"Plaintiff further states that it has heretofore employed counsel to make investigation of the matters and things hereinbefore recited with a view to determining, if possible, the respective rights of the parties, in order that a proper payment and disposition of the sum might be made and that both plaintiff and its legal counsel have been for some time engaged in said investigation.

"Plaintiff further states that in effecting a compromise of her alleged cause of action with said Mary Harrigan, she agreed to pay her lawyers their fees and this plaintiff made no agreement to pay said lawyers.

"Plaintiff further states that said Mary Harrigan is insolvent and has failed and refused to pay the said Bishop & Cobbs and Hausmann and the said John J. O'Connor their fees, and that this plaintiff recognizes its statutory liability for...