Wait v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 30 May 1907
• Citation: 103 S.W. 60,204 Mo. 491
• Parties: WAIT v. ATCHISON, T. & S. F. RY. CO. et al.
• Court: Missouri Supreme Court

103 S.W. 60

204 Mo. 491

WAIT v. ATCHISON, T. & S. F. RY. CO. et al.

Supreme Court of Missouri.

May 30, 1907.

1. ATTORNEY AND CLIENT—ATTORNEY'S LIEN —STATUTE—CONSTITUTIONALITY.

The attorney's lien act (Acts 1901, p. 46), providing for attorney's liens upon their clients' judgment, is constitutional, remedial, and will be liberally construed.

2. SAME—EFFECT OF LIEN.

If an attorney has a contract with his client for a percentage of recovery on a claim, under the express terms of the attorney's lien act (Acts 1901, p. 46), after suit brought and service of summons, whether the attorney gives notice of his lien as provided by section 2 or not, he has a lien upon the cause of action, which cannot be affected by any settlement between the parties before or after judgment; and, if he gives such notice, the agreement operates from the date of the service of the notice as a lien upon the claim or cause of action, and upon the proceeds of a settlement for such percentage.

3. SAME—PROTECTION AGAINST SETTLEMENT—ATTORNEY'S REMEDY.

Where the law affords no adequate remedy, an attorney's lien may be established in equity

against the proceeds of the litigation if within reach, and, if he has a contract for a percentage of the recovery and judgment has not become final because an appeal is pending, his lien is not destroyed by a compromise and release in which he is ignored, but the release may be opened on motion in a special proceeding and the discharge set aside pro tanto, and it may be enforced in the original case by execution.

4. SAME—PERCENTAGE AGREEMENT—EFFECT OF COMPROMISE.

Where an attorney has a contract for a percentage of recovery and his client settles without his assent, the amount of his lien is controlled by the settlement if it was honestly made, and not by the amount of the judgment, unless the judgment has become final.

5. APPEAL — DISPOSITION—ABSENCE OF BILL OF EXCEPTIONS.

Though no bill of exceptions has been settled and filed in a civil appeal, since one is not indispensable to an appeal because error may appear on the face of the record proper, the cause may not be advanced and judgment affirmed.

6. COURTS—SUPREME—JURISDICTION.

Under Const. art. 6, § 3, limiting the Supreme Court's original remedial jurisdiction, where defendants have appealed from a money judgment for plaintiff and plaintiff's attorney has a contract for a percentage of the recovery, though the parties have settled, the Supreme Court has no jurisdiction to determine issues raised by the motion of plaintiff's attorney to establish a lien and award execution for the amount thereof.

7. SAME—JURISDICTION—AMOUNT.

Under Laws 1901, p. 107, providing that unsubmitted cases in the Supreme Court involving not more than $4,500 exclusive of costs, shall be transferred to the Court of Appeals, the Supreme Court has no jurisdiction to determine an attorney's motion to establish a lien on a judgment appealed from, where the amount of the lien could not exceed $4,000.

8. ATTORNEY AND CLIENT—ATTORNEY'S LIEN —REMEDY.

Where defendants after appealing from a money judgment have settled with plaintiff without the assent of plaintiff's attorney, who has a contract for a percentage of the recovery, if the attorney fears that the Supreme Court's retention of jurisdiction may preclude him from proceeding to enforce his lien, he may by motion raise the question of his right to dismiss the appeal.

In Banc. Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by Bartlett F. Wait against the Atchison, Topeka & Santa Fé Railway Company and another. Defendants having appealed from a judgment for plaintiff, Pross T. Cross petitions to establish an attorney's lien and award execution. Petition denied.

Thos. R. Morrow and Cyrus Crane, for appellant. Pross T. Cross, for respondent.

LAMM, J.

At the June term of the Clay circuit court, 1906, plaintiff recovered against the defendant railway company and one Slater a judgment for $8,000 for personal injuries. Thereat defendants, unsuccessfully moving for a new trial and in arrest, filed their affidavit for appeal and an appeal was granted in due time. Thereafter, on August 24, 1906, defendants filed in this court a certified copy of the judgment appealed from and of the order granting an appeal, but the cause yet rests on the general docket, and has not been reached for assignment to a trial docket. Thereafter, on April 9, 1907, at the April term of this court, there was filed by Pross T. Cross, the attorney of record for respondent Wait, a motion or intervening petition (hereinafter called a motion), on his own behalf, wherein the matters aforesaid were narrated; and it was further alleged that at the June term, 1906, of the Clay circuit court defendants obtained an order allowing them during the November term, 1906, to settle and file their bill of exceptions; that said term passed without a bill filed or leave extended; that on the 15th day of September, 1906, without the knowledge or consent of plaintiff's said attorney of record, plaintiff and defendants by their written agreement compromised and settled said judgment, and plaintiff authorized defendants' attorney of record to enter satisfaction of record. Said written agreement is set forth in said motion in hæc verba, and evidences a compromise settlement and discharge of said $8,000 judgment for the sum of $3,000 in hand paid to plaintiff—its last clause running thus: "It is further expressly understood in making this settlement that said the Atchison, Topeka & Santa Fé Railway Company and its codefendant will pay all costs incurred in said suit aforesaid, and that they will further protect and hold the undersigned [the plaintiff Wait] free from any attorney's liens which may exist against said judgment or against him in favor of the undersigned's [sic] attorneys in said suit." Movent further alleges that he was plaintiff's sole attorney in said suit, and had a prior contract with plaintiff whereby he was to receive 50 per cent. of whatever sum or sums might be collected from said claim or suit, which said contract is also set out in hæc verba, bears date of 29th of January, 1904, and sets forth that Wait employs Cross to take charge of and collect said claim for personal injuries against Slater and said railway company; that Cross accepts the employment, and pledges his best endeavors to collect said claim, and it is mutually agreed that, for services to be rendered by him, he is to receive 50 per cent. as said, on the basis of no results to Wait, then no fee to Cross—i. e., that they were to be equal partakers of the joys as well as sorrows (the sweet as well as the bitter) of the contemplated venture—Cross being authorized to collect said claim by suit or otherwise as it appear best to him; that in December, 1903, he served notice in writing upon both said defendants, notifying them that he had been employed as Wait's attorney, and of the terms of his employment, etc.; and that on the 20th day of March, 1906, another written notice was served upon defendant railway company, setting forth the terms of the contract of employment by Wait and identifying the claim. The motion goes on to state that the settlement between plaintiff and defendants was in violation of the rights of Mr. Cross; that, under the terms of the aforesaid release, the contract between client and attorney, the notices served upon defendants and the act of the Legislature of the state of Missouri (Acts 1901, p. 46; the attorney's lien act) he, (Cross) had a valid lien against said judgment and against the defendant railway company for the amount of one-half of said judgment; that movent stands ready and asks leave to make proof of the foregoing allegations of fact, and he prays this court to take such steps as may be meet and proper to prevent a perpetration of a fraud upon his rights, and, if necessary, to appoint a commissioner to hear and take testimony, and that said judgment of the circuit court of Clay county be affirmed to the extent of Cross' interest therein, and that he be allowed execution therefor against both defendants, and for such other orders as the court may deem proper in the premises.

We are not favored with brief or suggestion by learned counsel in aid of or in opposition to the motion in hand; but the attorney's lien act being silent on the remedy for the enforcement of the lien, and silent on the remedy "against him who deforced the lien, for the value thereof," and the legislation being new and remedial, moreover, being of live interest to our Brethren at the bar, it is deemed best to hand down our views in writing, so that, peradventure, in course of time by a process of inclusion and exclusion, as points arise in judgment, the path of correct procedure may be blazed out.

It was said in Young v. Renshaw, 102 Mo. App. 173, 76 S. W. 701, by the St. Louis Court of Appeals at its October term, 1903, that where a cause had advanced to judgment, and the judgment was compromised over the head or behind the back of the attorney holding a contract with the judgment creditor for a percentage, then, in the absence of a statutory remedy for the enforcement of his lien, his remedy was not in equity, but at common law, and that, where the judgment is paid or discharged of his rights one of his remedies was to move the court in which the judgment was entered to set aside the satisfaction pro tanto and to award execution to the extent of his lien, and that, "where the judgment or its proceeds are yet under the control of the court, it is the duty of the court, on motion of the attorney, to control the judgment or its proceeds until he has [been] paid his fee." Having so written, it was discovered that the contract was entered into in May, 1900, that the judgment was entered in April, 1901; and it was pointed out that the attorney's lien act had no retrospective operation and was not in existence on the date of the contract or the date of the...