Wallace v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 22 December 1900
• Citation: 84 N.W. 662,112 Iowa 565
• Parties: JOHN WALLACE AND R. H. BROWN v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

84 N.W. 662

112 Iowa 565

JOHN WALLACE AND R. H. BROWN v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

December 22, 1900

Appeal from Woodbury District Court.--HON. FRANK R. GAYNOR, Judge.

PLAINTIFFS rendered services as attorneys for Susan O. Adams administratrix of the estate of her deceased husband in prosecuting a claim against appellant for causing his death. Upon the first trial of the case a judgment was recovered against the appellant, upon which attorneys' liens were duly filed. Thereafter the case was reversed by this court and a retrial had, which resulted in a verdict and judgment for the appellant, from which an appeal to this court was duly taken. Afterwards, and before further action was had thereon, the administratrix procured from the judge of the district court an order for a settlement of her claim against the company for the sum of $ 250, which was paid to her, and her action and appeal dismissed. The present action was brought to recover of the appellant one-half of the amount paid to the administratrix, together with costs and disbursements paid on her account, as provided by contract with her. The case was tried to the court, and judgment rendered for the plaintiffs for the sum of $ 250. The defendant appeals.

Affirmed.

Shull & Farnsworth for appellant.

George M. Pardee, R. H. Brown and John Wallace for appellees.

SHERWIN J. LADD, J., takes no part.

OPINION

SHERWIN, J.

But two questions are presented for our determination. It is first contended that no liens exist, because the action is based upon a contract, entered into subsequent to the filing of the liens, and because at the time of the settlement in question there was no claim or judgment pending against the appellant, and because it had no money due the administratrix; and, further, because the amount which was given her was a donation, and paid after all claim or possible cause of action against it had been finally determined. The case is similar in many respects to Winslow v. Railway Co., 71 Iowa 197. It differs only in the fact that after the procurement of the judgment a new contract was made, which enlarged the compensation of the attorneys, and in the further fact that a subsequent trial resulted in a verdict for the defendant. But neither of these additional facts, in our judgment, can change the rule there announced. The second contract only operates to change the amount the attorneys were to receive. The appellant had notice that they claimed a lien for services rendered, and the amount thereof could make no possible difference to it. Nor can the claim be sustained that the payment to Mrs. Adams was a mere gratuity. The entire record refutes such claim. The action was at the time pending against the company, notwithstanding it had obtained a judgment; and it can make no difference whether the money was in fact paid before or after the dismissal of the appeal and action, for it is very clear that the payment was made in settlement of the claim against the company, and to prevent further litigation. Under this condition of things the plaintiffs were entitled to protection. Larned v. City of Dubuque, 86 Iowa 166, 53 N.W. 105.

Appellant's principal contention is that the contract for attorney's fees was champertous and void. The claim is not made that the contract itself shows this, but it is urged that the facts and circumstances appearing in evidence...