Wagner v. Shelly
| Decision Date | 04 December 1950 |
| Docket Number | No. 21431,21431 |
| Citation | 235 S.W.2d 414,241 Mo.App. 259 |
| Parties | WAGNER v. SHELLY. |
| Court | Missouri Court of Appeals |
Walter A. Raymond, Kansas City, for appellant.
Raymond E. Martin, W. Raleigh Gough, Kansas City, for respondent.
The appellant, an attorney, was plaintiff in the trial court and filed this action in two counts to recover from Solon S. Shelly, $1000 in each count, alleged to be, respectively, fees agreed to between the plaintiff and defendant for the plaintiff's legal services in each of two successive divorce actions prepared and filed by the plaintiff for one Helen R. Anderson against her husband George N. Anderson. Pending the action, defendant died and his executrix was substituted as defendant. At the trial the court, without a jury, found the issues for the defendant on both counts and judgment was rendered accordingly. The plaintiff has appealed.
According to the plaintiff's evidence Solon S. Shelly operated an automobile business in Kansas City, Missouri, and prior to October, 1944, had been divorced from his wife. He later became interested in one Helen R. Anderson, who was separated from her husband and 'kept company' with her and expressed to a close friend that he loved Mrs. Anderson and desired to marry her if she got a divorce. In October, 1944, he called at the home of this friend, John Lock, and in the course of their conversation there regarding Mrs. Anderson, and in the presence of other guests, Mr. Shelly inquired of Mr. Lock if the latter knew of anyone 'who could get the divorce'. Mr. Lock recommended the plaintiff, his own attorney, whom he called by telephone at plaintiff's residence. Mr. Shelly then took over the telephone conversation and was heard to inquire of the plaintiff if 'he could get a divorce for a friend of his', and talked about the plaintiff representing Mrs. Anderson in a proposed divorce action against her husband, and Shelly was heard to say he would 'take care of the fees on it to get a divorce'. Shelly then or later told Mr. Lock the fee was to be $1000. Plaintiff had not known either Shelly or Mrs. Anderson previous to these transactions. Shelly said it had cost him around $200,000 to get his own divorce and 'this thing was what he wanted and it was cheap enough if he could get it done'.
Thereafter Mrs. Anderson called at the plaintiff's office, executed the divorce petition prepared by the plaintiff in her behalf, and plaintiff filed the petition and caused personal service to be obtained on Mr. Anderson. Plaintiff later discussed with the judge before whom the divorce case was to be heard the possibility of a special setting to avoid publicity. Plaintiff listed the divorce case for trial, but on the day set for the hearing, an answer was filed and plaintiff was advised that Mrs. Anderson had been living with her husband ever since the divorce suit was instituted, and plaintiff dismissed the suit for that reason.
A month or so later, Mr. Shelly again called at Mr. Lock's house and told him that he understood Mr. Anderson had met Mrs. Anderson in Chicago, and that they had lived there for some time since the divorce action was filed, and that plaintiff had advised Mr. Shelly that the Anderson suit would have to be 'filed again and gone over again', and that he (plaintiff) 'wants another $1000 for the second case'. Shelly asked Mr. Lock what he thought of it. Lock replied: . Shelly answered: . Mr. Shelly then retained plaintiff to file a second divorce action for Mrs. Anderson.
Later Mrs. Anderson again called at the plaintiff's office and she, too, was advised by the plaintiff that it would be necessary to start new proceedings. A new petition was prepared and Mrs. Anderson executed it. Plaintiff filed the second petition, obtained a signed entry of appearance from Mr. Anderson, and again talked with the trial judge about a private hearing of the Anderson case. Some time later Shelly told Mr. Lock that he and Mrs. Anderson were 'not getting along so good', and witness Lock testified that he 'guessed Louis had called him (Shelly) up and said he wanted his money', and Shelly said: . Thereafter Mrs. Anderson discharged the plaintiff as her attorney, and plaintiff filed a withdrawal in the case as attorney for her. New counsel later appeared for Mrs. Anderson in the second divorce action and a default decree of divorce was granted her.
Plaintiff at all times stood ready, willing and able to prosecute the suits to judgment. Plaintiff received no compensation from any source for any of his services in connection with either divorce action. Mr. Shelly did not marry Mrs. Anderson after the divorce, but during his last illness, he remarried his former wife, who is his widow, his executrix and the present respondent herein.
The answer in this case is a general denial as to each count and, further, alleges that if the contracts were made for services, as stated in said counts, respectively, the same were designed to promote or facilitate the granting of a divorce, dissolving the marriage between Helen R. Anderson and George N. Anderson, and therefore against public policy and void.
The respondent offered no evidence herein except the records of the two divorce actions which showed that the first divorce suit was filed November 4, 1944; summons served November 6, 1944, answer filed January 10, 1945, and cause dismissed January 16, 1945. The records further showed the second divorce action was filed January 20, 1945, entry of appearance filed January 22, 1945, withdrawal by plaintiff as attorney for Mrs. Anderson, and appearance of new counsel on January 31, 1945, and a default decree of divorce in favor of Mrs. Anderson on February 20, 1945.
The court made a general finding for the defendant in this case and no specific findings were given or requested. Following a general judgment entered in behalf of defendant, plaintiff's motion for new trial was filed and overruled.
In substance, the appellant contends that under Section 114(d) of the Civil Code, Mo.R.S.A. Sec. 847.114(d), this court is authorized to review the law and the evidence as in an action of an equitable nature and will render such decree as should have been rendered by the trial court; that the agreements between plaintiff and Shelly were susceptible of a construction making them legal and should be so construed; that the plaintiff, being ready, able and willing to try each divorce action and prevented from so doing by the actions of Shelly and Mrs. Anderson, is, nevertheless, entitled to the agreed compensation as if he had fully performed...
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...789(3)], to which society represented by the state is a party [Koslow v. Taylor, 356 Mo. 755, 203 S.W.2d 433, 437(4); Wagner v. Shelly, Mo.App., 235 S.W.2d 414, 417(4)], and in which '(t)he conscience of the court must protect the public interest' [State ex rel. Couplin v. Hostetter, 344 Mo......
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