Young v. Levine

• Decision Date: 14 October 1930
• Docket Number: No. 28506.,No. 28507.,28506.,28507.
• Citation: 31 S.W.2d 978
• Parties: TAYLOR R. YOUNG and P.H. CULLEN v. PHILLIP LEVINE and HASSE REALTY COMPANY, Appellants.
• Court: Missouri Supreme Court

31 S.W.2d 978

TAYLOR R. YOUNG and P.H. CULLEN v. PHILLIP LEVINE and HASSE REALTY COMPANY, Appellants.

No. 28506.

No. 28507.

Supreme Court of Missouri.

Division One, October 14, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Anthony F. Ittner, Judge.

AFFIRMED (in part) AND REVERSED (in part).

Conrad Paeben and Franklin Miller for appellants.

(1) Plaintiffs' case as pleaded is essentially a suit at law for the recovery of a money judgment against Levine on a disputed account for attorneys' fees, and was triable by jury unless jury trial was waived; the equitable relief sought being merely incidental and ancillary to the case at law, and in aid of the judgment and execution therein. Missouri Constitution, Art. II, sec. 28; Sec. 1398, R.S. 1919; Berry v. Railroad, 223 Mo. 368; Kansas City v. Smith, 238 Mo. 323; Smyth v. Boroff, 156 Mo. App. 24; Minor v. Burton, 228 Mo. 558; Tinsley v. Kemery, 170 Mo. 310. (2) The jury trial could be waived only in the manner provided by statute, which was not done. On the contrary. defendants expressly demanded in open court and were refused a jury trial. Its denial in this case is reversible error. Sec. 1400, R.S. 1919; Briggs v. Ry. Co., 111 Mo. 174; Brown v. Ry. Co., 69 Mo. App. 420; Dilly v. Ry. Co., 55 Mo. App. 128; Batterton v. Sims, 73 Mo. App. 353; Walker v. Modern Woodmen, 190 Mo. App. 363; Tinsley v. Kemery, 170 Mo. 317. (3) Plaintiffs' cause of action (pleaded in one count) could not be treated and tried both as a suit at law and as one in equity, by the same court at the same trial. The court exceeded its rightful powers and abused its discretion in so trying the case and in rendering the money judgment against Levine in the action at law and then decreeing the liens upon Levine's property and other equitable relief against both appellants. These matters should have been separately stated and separately tried. Sec. 1401, R.S. 1919; Jones v. Moore, 42 Mo. 419; Henderson v. Dickey, 50 Mo. 166; Crowe v. Peters, 63 Mo. 435; McFarland v. Ry. Co., 125 Mo. 275; Tinsley v. Kemery, 170 Mo 317. (4) No lien for $3,333.33 (the amount decreed as one-third the value of the property) was established in plaintiffs' favor arising out of their services in the suit in which the property was recovered, either by the Attorneys' Lien Law or by express contract between the parties, under the pleadings and the evidence. Secs. 690, 691, R.S. 1919; Wait v. Railroad, 204 Mo. 491; Conkling v. Austin, 111 Mo. App. 302; Sec. 2169, R.S. 1919; Russell v. Sharp, 192 Mo. 270. (5) No lien for $7,770.26 (the amount decreed upon the judgment awarded plaintiffs) was established in plaintiffs' favor by the conveyance in the nature of a deed of trust dated March 10, 1925, under the pleadings and the evidence. Sec. 2222, R.S. 1919; Jones v. Shepley, 90 Mo. 307; Martin v. Nixon, 92 Mo. 26; Leiweke v. Jordan, 59 Mo. App. 619. (6) No valid liens being established against Levine's property by the evidence, no order could be properly or legally made by the court requiring Hasse Realty Company as Levine's agent to account for and pay into court, for plaintiffs' use and benefit, the rents collected from his property. (7) A new trial should have been granted on the ground that the money judgment for $7,770.26 is not supported by the evidence, is against the weight of the evidence and is excessive on plaintiffs' own evidence. Sec. 1453, R.S. 1919: Pratt v. Blakey, 5 Mo. 205. (8) A new trial should have been granted on the ground of the newly discovered evidence set up in Levine's motion, supported by the affidavit of the absent witness Cleora Young. Sec. 1453, R.S. 1919; Goff v. Mulholland, 33 Mo. 203; Callahan v. Caffarata, 39 Mo. 136; St. Joseph, etc., Co. v. Ry. Co., 148 Mo. 478; State v. Nickens, 122 Mo. 607; Bresnan v. Grogan, 74 Mo. App. 587. (9) A new trial should have been granted on the ground that the judgment was procured by improper, illegal and mistaken evidence of plaintiffs, as disclosed by Cleora Young's affidavit in support of, and plaintiff Young's own affidavit in opposition to, the motion for new trial. Sec. 1453. R.S. 1919; Ridge v. Johnson, 129 Mo. App. 541; Scott v. St. Joseph & Co., 168 Mo. App. 527.

Abbott, Fauntleroy, Cullen & Edwards and Taylor R. Young for respondents.

(1) An action to enforce an attorney's lien is equitable in its nature and the parties are not entitled to a trial by jury. State ex rel. Ellison v. Roehrig (Mo.), 8 S.W. (2d) 998; Young v. Olson (Mo. App.), 16 S.W. (2d) 674; Ely v. Kountz, 167 Mo. 377; Jones on Mortgages (6 Ed.), p. 402, sec. 1443. (2) The deed of trust was a sufficient memorandum in writing to serve as a predicate to establish an equitable lien. In fact, it did create an equitable lien. 41 C.J. 305, sec. 53; 41 C.J. 303, sec. 51. (3) The note was given as collateral security to indemnify plaintiffs against any loss of their lien and to secure the payment of other indebtedness. Jones on Collateral Securities (3 Ed.) 172, sec. 144; Dies v. Bank, 129 Tenn. 89, Ann. Cas. 1915a. (4) Appellant did not save exceptions to many adverse rulings of the court now complained of. He did not assign a great many of the rulings now assigned as error in the motion for new trial, and therefore, there is nothing before this court for review. Secs. 1226, 1230, 1513, R.S. 1919. (5) The motion for new trial, based on newly discovered evidence, was properly overruled. because the testimony said to be newly discovered was cumulative and fully contradicted, and because the motion for new trial failed to specify facts showing diligence by the appellant. Kansas City v. Oil Co., 140 Mo. 475; State v. Laughlin, 20 Mo. 111; Howlin v. Reeves, 25 Mo. App. 458.

FRANK, J.

Action by respondents, plaintiffs below, to recover from defendant Levine, attorney fees in the sum of $7,063.88, with interest from May 25, 1925, and to establish the amount recovered as a lien against certain real estate belonging to said defendant. The decree below awarded plaintiffs the amount claimed, with interest, declared same to be a lien on the real estate described in the petition, and ordered that defendant Hasse Realty Company pay into court for the use of plaintiffs the net amount of rents which it had collected from the tenants of said real estate, while acting as the rental agent thereof. Both defendants appealed.

The first point urged by appellant is that the court erred in refusing his demand for a jury trial to fix the reasonable value of the attorney fees sued for. If this were a case of Suit in first impression, we would not hesitate to hold that it Equity. was a suit in equity to enforce an equitable lien. However, we are not without authority on the question. The courts of this and other jurisdictions have so held in similar cases. Fillmore v. Wells, 10 Colo. 228, was a suit by attorneys to have the amount of their fees determined, and also to have the same adjudged a lien on the realty recovered through their efforts. Section 85 of the General Statutes of Colorado, 1883, provided that "all attorneys and counselors at law shall have a lien upon any money or property in their hands, or upon any judgment they may have obtained belonging to any client, for any fee or balance of fees due, or any professional service rendered by them in any court of this State, which said lien may be enforced by the proper civil action." (Italics ours.)

Contention was made in that case that a suit in equity could not be maintained by an attorney for the enforcement of his lien where the employment was questioned and the amount of his claim was unliquidated. In disposing of that contention, the court, among other things, said:

"The attorney's lien, whether under the statute or at common law, is equitable in its nature. Even the decisions in this country, which confine its existence and application to the narrowest limits, always speak of it as an equitable lien, right or privilege. It is not property in the thing, which gives a right of action at law. It is a charge upon the thing, which is protected in equity. Courts of law may recognize it when the res is in possession of the lienor, and the owner is seeking to deprive him of such possession. But where the thing is not in possession, and some affirmative action is required by the attorney, he, like other lien claimants, must seek relief in equity. In some instances, a formal suit should be instituted; in others, an application to the court rendering the judgment, for the proper order would be sufficient.

"The main purpose of plaintiffs in this case is to utilize their lien by subjecting, through it, the rents and real estate, if need be, recovered by their exertions, to the payment of their claim for services. Since the employment by the different guardians, and the amount of compensation, are controverted matters, it becomes incidentally necessary to investigate and determine these questions... . But, since a court of equity is the only forum that can enforce by proper decree the lien rights, we are of opinion that this is one of the cases wherein such court may take and retain jurisdiction for all purposes. Having assumed jurisdiction to enforce the lien, it would be encouraging a multiplicity of suits, and, in this as in other respects, contrary to established procedure in equity. to say that the court of equity shall not determine the incidental, though material, legal questions involved."

Fischer-Hansen v. Railroad, 173 N.Y. l.c. 502, 66 N.E. 395, announces the same rule.

The statutes of this State gives an attorney a lien on his client's cause of action, which attaches to whatever is recovered in said action through the efforts of the attorney. Section 690, Revised Statutes 1919, provides:

"The compensation of an attorney or counselor for his services is governed by agreement express or implied. which is not restrained by law. From the commencement of an action or the services of an answer containing a counterclaim, the attorney...