Warshaw-Seattle, Inc. v. Clark, WARSHAW-SEATTL

• Decision Date: 14 December 1955
• Docket Number: I,WARSHAW-SEATTL
• Parties: nc., a Florida Corporation, Petitioner, v. Patricia CLARK, Wavel S. Clark, and Malcolm Lewis Kneale, Respondent.
• Court: Florida Supreme Court

Page 623

85 So.2d 623

WARSHAW-SEATTLE, Inc., a Florida Corporation, Petitioner, v. Patricia CLARK, Wavel S. Clark, and Malcolm Lewis Kneale, Respondent.

Supreme Court of Florida, Special Division B.

Dec. 14, 1955.

Rehearing Denied Feb. 22, 1956.

Anderson & Nadeau, Miami, for petitioner.

Caldwell, Parker, Foster, Wigginton & Miller and Malcolm S. H. Kneale, Miami, for respondent.

O'CONNELL, Justice.

Warshaw-Seattle, Inc., the petitioner here and plaintiff below, on January 22, 1953 brought a common law action, in contract, in the Civil Court of Record, Dade County, Florida, against Patricia Clark and Wavel S. Clark, defendants below, to recover the sum of $233.33. Plaintiff also filed its attachment affidavit, its attachment bone in amount of $466.67, and Writ of Attachment was issued to the Sheriff who promptly seized an automobile owned by the defendant, Wavel S. Clark. Thereupon, Wavel S. Clark filed an affidavit claiming said automobile to be exempt under the constitution of this state and the automobile was released. Malcolm Lewis Kneale, attorney for Wavel S. Clark, the owner of the car, then filed a motion to dissolve attachment and traverse of the attachment affidavit. Plaintiff amended its complaint and answers were ultimately filed by the defendants.

The issue joined by defendants' traverse of plaintiff's attachment affidavit was tried before a jury, which on March 26, 1953, rendered a verdict that the 'plaintiff did not have the right to attach the property of the defendants.' Final judgment in accordance with the verdict was rendered and filed on April 8, 1953.

On June 23, 1953, plaintiff filed its Motion for Order of Dismissal, on the ground that 'the cause has been amicably settled by the parties hereto.' A hearing was had on said motion, at which counsel for the parties were present, after which hearing on July 15, 1953, the court entered an order denying the plaintiff's motion to dismiss the cause and giving the defendants' attorney until August 1, 1953, to file a claim for attorney's fees.

On July 27, 1953, Malcolm Lewis Kneale filed a Bill of Intervention in which he alleged that:

'* * * said Defendants, Patricia Clark and Wavel S. Clark, sought the service of your Intervenor, as their attorney, in regard to said attachment, and agreed to pay your Intervenor a reasonable attorney's fee for his service in attempting to dissolve said attachment, * * *'

Said Bill of Intervention further alleged that Intervenor was successful in securing dissolution of said attachment and that he rendered his skill, labor and time in so doing; that on about April 10, 1953, he made demand on plaintiff, through its counsel, for 'a reasonable attorney's fee for services rendered in Dissolving Plaintiff's Attachment'- ; that plaintiff was aware that Intervenor had not been paid for his services; that nevertheless on or about April 10, 1953, plaintiff, acting through its president, made a settlement with the defendants, whereunder the defendants released plaintiff from all liability for the wrongful attachment of defendants' automobile, defendants received Fifty ($50.00) Dollars in cash and gave plaintiff a promissory note for the full amount claimed by it in the suit, but made no provision for payment of Intervenor's fees; that he had no knowledge of and did not consent to said settlement. There was no allegation that the settlement was made with the intent to deprive the Intervenor of his fees.

On August 5, 1953, Malcolm Lewis Kneale, as Intervenor, filed a Motion for Summary Judgment with a supporting affidavit. On September 16, 1953, plaintiff filed a motion to dismiss all of the proceedings.

On November 5, 1953, the court entered an order in which it dismissed the plaintiff's claim against the defendants, and the defendants' claim against the plaintiff; denied the Motion to Dismiss the Bill for Intervention and authorized the Intervenor to intervene and prosecute his claim; and simultaneously, in the same order, granted Intervenor Kneale's Motion for Summary Judgment on the issue of liability, ordering that the case proceed for the sole purpose of determining the amount of Intervenor's damage. (Attorney's fees.)

Trial before jury on the question of amount of attorney's fee was held and the jury awarded the Intervenor Seven Hundred Fifteen ($715.00) Dollars.

Plaintiff moved for new trial, which was denied, and then appealed to the Circuit Court of Dade County, where the following order was entered on May 24, 1955:

'Carroll, J.

'This is an appeal from the judgment of the Civil Court of Record for certain attorney's fees in the amount of $715.00. The bond was $500.00. Without going into the facts, it can be stated as the conclusion of this court that there was no basis for the allowance of judgment beyond the $500.00 amount of the bond, and the judgment should be reduced to that figure.

'Accordingly, the cause is remanded for further proceedings in conformance with this opinion.

'It is so ordered.'

Plaintiff filed its petition for certiorari and Malcolm Lewis Kneale filed a cross petition for certiorari, plaintiff also filed a motion to dismiss defendants' petition because not filed within thirty (30) days from filing of the order from which relief is sought. Said Motion to Dismiss is without merit. 30 F.S.A.Supreme Court Rules rule 22.

The briefs filed herein by the petitioner and cross petitioner raise fourteen questions. We feel it necessary to answer only one, to-wit:

Does an attorney, representing an attachment defendant in a successful dissolution of the Writ of Attachment have a right to intervene in the main action, which was in contract, and sue the plaintiff for his fees rendered in dissolving the writ, where the plaintiffs, without the knowledge and consent of the attorney, settle the main action with the defendants and secure a release from defendants of a possible claim for damages for the wrongful attachment.

'Persons who are not parties of record to a suit have no standing therein which will enable them to take part in or control the proceedings. If they have occasion to ask relief in relation to the matters involved, they must either contrive to obtain the status of parties in such suit or they must institute an independent suit.' 39 Am.Jur., Parties, Sec. 55. 'In our jurisprudence, the right of one to intervene in an action, suit, or proceeding between others is generally regarded as a purely statutory right, or a right of statutory origin, and as one which is to be exercised according to the statute authorizing it. * * * It was unknown to common-law procedure.' 39 Am.Jur., Parties, Sec. 56.

There was no statute or rule of court applicable to the case involved in this proceeding, and in the absence of such a statute or rule of court Florida follows the common law. It therefore follows that the intervention of Malcolm Lewis Kneale should not have been allowed.

There are other errors which would warrant issuance of the writ, but which need not be dealt with here in view of the conclusion reached above.

The petition for Writ of Certiorari is granted, and the cross petition denied. The order of the Circuit Court in the premise is accordingly vacated, and the cause remanded for the entry of an order directing the disposition of the proceeding in the Civil Court of Record in conformance with this...